Opinion of the Company's Counsel. The Purchaser shall have received from Krys, Boyle, Freedman & Sawyer, P.C., counsxx xx xxe Cxxxxxx, an opinion dated the Closing Date, in form and substance satisfactory to the Purchaser, to the effect that: (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada, and the Company has the requisite corporate power and authority to own it properties and to conduct its business. (b) The Company is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction of the United States. (c) The Company has the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies. (d) The capitalization of the Company is as follows: (i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock have been duly authorized, issued and delivered, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective rights, privileges and preferences of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable. (ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws. (iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securities. (e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers of the Company named thereon. (f) The execution, delivery, performance and compliance with the terms of this Agreement do not violate any provision of any federal, state or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision of the Company's amended Articles or By-Laws. (g) All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required in connection with the consummation of the transactions contemplated by this Agreement have been obtained and are effective as of the Closing, and such counsel is not aware of any proceedings, or threat thereof, which question the validity thereof. (h) Based in part upon the representations of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant to the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13 (i) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware of any action, proceeding or investigation pending against the Company or any of its officers, directors or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Company. (j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.
Appears in 2 contracts
Samples: Investment Agreement (Saint Andrews Golf Corp), Investment Agreement (Las Vegas Discount Golf & Tennis Inc)
Opinion of the Company's Counsel. The Purchaser shall have received from Krys, Boyle, Freedman & Sawyer, P.C., counsxx xx xxe Cxxxxxxxxxxxxx to xxx Xompany, an opinion dated the Closing Date, in form and substance satisfactory to the Purchaser, to the effect that:
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of NevadaColorado, and the Company has the requisite corporate power and authority to own it properties and to conduct its business.
(b) The Company is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction of the United States.
(c) The Company has the requisite corporate power and authority to execute, deliver and perform this Agreement and the Option Agreement. The Agreement has and the Option Agreement have been duly and validly authorized by the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) The authorized capital stock of the Company consists of 15,000,000 shares of Common Stock, of which 5,831,807 shares are issued and outstanding, and 5,000,000 shares of Preferred Stock, of which no shares are issued and outstanding. The outstanding shares have been duly authorized and validly issued, and are fully paid and nonassessable. Options to purchase 432,000 shares of Common Stock are issued and outstanding under the Company's employee stock option plan. All outstanding securities of the Company were issued in compliance with applicable federal and state securities laws. Except as set forth above, there are no option, warrants or other rights to purchase any of the Company's capital stock.
(ii) Preferred Stock. 5,000,000 shares of Stock, of which no shares are issued and outstanding.
(iii) Common Stock. 15,000,000 shares of Common Stock, of which (A) 500,000 5,831,807 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 2,303,290 shares have been designated as Series B Preferred and are being purchased pursuant to this Agreement. Such shares of Series B Preferred Stock have been duly authorized, issued and delivered, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective rights, privileges and preferences of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 All such shares of Common Stock, of which 3,000,000 shares Stock have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities lawslaws and approved by all requisite shareholder action.
(iiiiv) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, ; (DB) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 347,975 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreementherein, (FC) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 432,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms of this Agreement and the Option Agreement do not violate any provision of any federal, state or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision of the Company's amended Articles of Incorporation ("Articles") or By-Laws.
(g) All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required in connection with the consummation of the transactions contemplated by this Agreement and the Option Agreement have been obtained and are effective as of the Closing, and such counsel is not aware of any proceedings, or threat thereof, which question the validity thereof.
(h) Based in part upon the representations of the Purchaser in this Agreement, the offer and sale of the Series B Preferred Common Stock pursuant to the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13.
(i) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware of any action, proceeding or investigation pending against the Company or any of its officers, directors or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Company.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of NevadaColorado.
Appears in 1 contract
Samples: Investment and Voting Agreement (Las Vegas Discount Golf & Tennis Inc)
Opinion of the Company's Counsel. The Purchaser Company shall have received from Krysdelivered to the Investor an opinion, Boylesatisfactory to the Investor, Freedman of Fulbright & SawyerXxxxxxxx, P.C.L.L.P., counsxx xx xxe Cxxxxxxcounsel for the Company, an opinion dated the Closing Date, in form and substance satisfactory to the Purchaser, to the effect that:
(a) The Company is a corporation duly organized, organized and validly existing and in good standing under the laws of the State state of NevadaDelaware, and the Company has the requisite corporate power and authority to own and hold the properties owned and leased by it properties and to conduct its businesscarry on the business in which it is engaged. The Company has the corporate power and authority to enter into this Agreement, to issue and sell the Shares and to carry out the provisions of this Agreement.
(b) The Company This Agreement has been duly authorized, executed and delivered by the Company, is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction the legal, valid and binding agreement of the United StatesCompany and is enforceable against the Company in accordance with its terms, subject, as to the enforcement of remedies, to limitations under applicable bankruptcy, insolvency, moratorium, reorganization, and other laws affecting the rights of creditors generally and to judicial limitations on the enforcement of the remedy of specific performance and other equitable remedies.
(c) The Company has Shares being purchased on the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock Closing Date have been duly authorizedauthorized and, issued upon delivery thereof and delivered, are validly outstanding, payment therefore in accordance with the Stock Purchase Agreement will be fully paid and nonassessable, and have been approved by all requisite shareholder actionare entitled to the rights, preferences and provisions of the Company's Certificate of Incorporation and the benefits of the provisions of this Agreement applicable thereto. The respective rights, privileges certificate evidencing the Shares is in valid and preferences sufficient form under Delaware law.
(d) All corporate proceedings required by law or by the provisions of this Agreement to be taken by the Board of Directors and shareholders of the Preferred Series B are as stated Company on or prior to such Closing Date in connection with the Certificate attached as Exhibit A to execution and delivery of this Agreement, the offer, issuance and sale of the Shares and the consummation of the transactions contemplated by this Agreement. The Conversion Stock has , have been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securitiestaken.
(e) The certificates representing Company is authorized by its Certificate of Incorporation to issue 20,000,000 shares of Common Stock and 1,800,000 shares of Preferred Stock. Immediately prior to the Preferred Closing Date there were 6,803,039 shares of Common Stock, 200,000 shares of Series A Stock, 400,000 shares of Series B Stock and 600,000 shares of Series C Stock issued and outstanding. All shares outstanding immediately prior to the Closing Date have been duly authorized and validly issued. To the best of such counsel's knowledge, the Company holds no shares in its treasury. Except for shares of Common Stock and shares of Common Series A Stock, Series B Stock are in due and proper form and have been duly and validly executed by Series C Stock, the officers Company has no other authorized series or class of capital stock and, to the best of such counsel's knowledge, has no outstanding options, warrants or other rights to acquire securities of the Company named thereonCompany, other than as disclosed in Exhibit A to this Agreement.
(f) The executionTo the best of such counsel's knowledge, delivery, performance and compliance with no security holder of the terms Company is entitled to preemptive or similar rights as a result of the execution or delivery of this Agreement do not violate any provision of any federal, state or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision issuance of the Company's amended Articles or By-LawsShares and the Adjustment Shares other than as expressly set forth in this Agreement.
(g) All consentsAssuming the accuracy of the representations made by the Investor in Section 4, approvalsthe Company has obtained the approval or consent of all governmental agencies or bodies required for the legal and valid execution and delivery of this Agreement and the legal and valid offer, orders or authorizations of, issuance and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on sale of the part Shares and for the performance of the obligations of the Company required under all provisions of this Agreement, other than those with respect to registration rights. Assuming the accuracy of the representations made by the Investor in connection with Section 4, the execution, delivery and performance of this Agreement, the offer, issuance and sale of the Shares and the issuance of Adjustment Shares, and the consummation of the transactions contemplated by this Agreement have been obtained and are effective as will not result in any breach or violation of the Closingterms or provisions of, or constitute a default under, the Certificate of Incorporation or the bylaws of the Company or any statute, rule or regulation affecting the Company or its business. To the best of such counsel's knowledge, the execution, delivery and such counsel is performance of this Agreement by the Company, the offer, issuance and sale of the Shares and the consummation of the transactions contemplated by this Agreement will not aware result in any violation of any proceedingsagreement or other instrument to which the Company is a party or by which it is bound or to which any of its properties, assets or threat thereofbusiness is subject or any judgment, which question the validity thereofdecree or order.
(h) Based in part upon Assuming the accuracy of the representations made by the Investor in Section 4, the offer, sale, issuance and delivery of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant Shares to the terms of Investor under this Agreement are exempt from the registration and prospectus delivery requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the all applicable state securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13laws.
(i) Except as set forth for matters disclosed on the Schedule of Exceptions attached to the Agreement as Exhibit BA, such counsel is not aware has no knowledge of any actionlitigation, proceeding or governmental investigation pending or threatened against the Company or any of its officers, directors properties or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Companybusiness.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser Company shall have received from Krysdelivered to Xxxxxx, BoyleXxxxxxx & Xxxxx, Freedman & Sawyer, P.C., counsxx xx xxe Cxxxxxx, Incorporated an opinion of Xxxxxxxxxx & Xxxxx, P.A., counsel for the Company, dated the Closing Date, in form and substance satisfactory to the Purchaserclosing date, to the effect that:
(a) The Company is a corporation duly organized, organized and validly existing and in good standing under the laws of the State state of Nevadaits incorporation, and the Company has the requisite corporate power and authority to own and hold the properties owned and leased by it properties and to conduct its businesscarry on the business in which it is engaged. The Company has the corporate power and authority to enter into this Agreement, to issue and sell the Shares, Warrants and the Warrant Shares and to carry out the provisions of this Agreement.
(b) The Company This Agreement has been duly authorized, executed and delivered by the Company, and is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction the legal, valid and binding agreement of the United StatesCompany and is enforceable against the Company in accordance with its terms, subject, as to the enforcement of remedies, to limitations under applicable bankruptcy, insolvency, moratorium, reorganization, and other laws affecting the rights of creditors generally and to judicial limitations on the enforcement of the remedy of specific performance and other equitable remedies.
(c) The Company has Securities being purchased on the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock closing date have been duly authorized, validly issued and delivereddelivered by the Company, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective are entitled to the rights, privileges preferences and preferences of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any provisions of the Company's securitiesarticles of incorporation and the benefits of the provisions of this Agreement applicable thereto. The certificates evidencing the Shares and the Warrants are in valid and sufficient form.
(ed) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed All corporate proceedings required by law or by the officers provisions of this Agreement to be taken by the Board of Directors and shareholders of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms of this Agreement do not violate any provision of any federal, state on or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision of the Company's amended Articles or By-Laws.
(g) All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required prior to such closing date in connection with the execution and delivery of this Agreement, the offer, issuance and sale of the Securities and the consummation of the transactions contemplated by this Agreement Agreement, have been obtained duly and are effective as of the Closing, and such counsel is not aware of any proceedings, or threat thereof, which question the validity thereofvalidly taken.
(he) Based The Company is authorized by its articles of incorporation to issue 12,500,000 shares of capital stock, which consists of the following: (a) 10,000,000 shares of common stock, $.05 par value, of which there are outstanding 3,651,772 shares, (b) 400,000 shares of Convertible Preferred Stock, of which there are outstanding 150,000 shares, (c) 150,000 shares of Series A Convertible Preferred Stock, of which there are outstanding 74,367, and (d) 1,950,000 undesignated shares. All shares outstanding immediately prior to the closing date have been duly authorized and validly issued. Except for the Common Stock, the Convertible Preferred Stock and the Series A Convertible Preferred Stock, the Company has no other authorized series or class of capital stock and, to the best of such counsel's knowledge and without any special inquiry into this matter, has no outstanding options, warrants or other rights to acquire securities of the Company, other than as disclosed in part Exhibit B.
(f) The requisite number of Warrant Shares have been validly authorized and reserved for issuance upon exercise of the Warrants, and when issued upon such exercise, will be authorized, validly issued and outstanding, fully paid and nonassessable. To the best of such counsel's knowledge, except for with regard to the outstanding shares of Stock, no security holder of the Company is entitled to preemptive or similar rights as a result of the execution or delivery of this Agreement or the issuance of the Shares, Warrants, or Warrant Shares.
(g) Assuming the accuracy of the representations made by the Investors in their Acceptances and Section 4 hereof, the offer, sale, issuance and delivery of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant Securities to the terms of Investors under the circumstances contemplated by this Agreement are exempt from the registration and prospectus delivery requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the all applicable state securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13laws.
(ih) Except for matters disclosed as set forth on the Schedule part of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware has no knowledge of any actionlitigation, proceeding or governmental investigation pending or threatened against the Company or any of its officers, directors properties or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Companybusiness.
(ji) The Company is Nothing has come to the attention of counsel which would lead counsel to reasonably believe that the Company's business and operations are not being conducted in violation of any provisions of its Articles or Bylawsall material respects in compliance with applicable laws, rules, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevadaregulations.
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser Company shall have received from Krysdelivered to the Investor an opinion, Boylesatisfactory to the Investor, Freedman of Fulbright & SawyerXxxxxxxx, P.C.L.L.P., counsxx xx xxe Cxxxxxxcounsel for the Company, an opinion dated the Closing Date, in form and substance satisfactory to the Purchaser, to the effect that:
(a) The Company is a corporation duly organized, organized and validly existing and in good standing under the laws of the State state of NevadaDelaware, and the Company has the requisite corporate power and authority to own and hold the properties owned and leased by it properties and to conduct its businesscarry on the business in which it is engaged. The Company has the corporate power and authority to enter into this Agreement, to issue and sell the Shares and to carry out the provisions of this Agreement.
(b) The Company This Agreement has been duly authorized, executed and delivered by the Company, is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction the legal, valid and binding agreement of the United StatesCompany and is enforceable against the Company in accordance with its terms, subject, as to the enforcement of remedies, to limitations under applicable bankruptcy, insolvency, moratorium, reorganization, and other laws affecting the rights of creditors generally and to judicial limitations on the enforcement of the remedy of specific performance and other equitable remedies.
(c) The Company has Shares being purchased on the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock Closing Date have been duly authorizedauthorized and, issued upon delivery thereof and delivered, are validly outstanding, payment therefore in accordance with the Stock Purchase Agreement will be fully paid and nonassessable, and have been approved by all requisite shareholder actionare entitled to the rights, preferences and provisions of the Company's Certificate of Incorporation and the benefits of the provisions of this Agreement applicable thereto. The respective rights, privileges certificate evidencing the Shares is in valid and preferences sufficient form under Delaware law.
(d) All corporate proceedings required by law or by the provisions of this Agreement to be taken by the Board of Directors and shareholders of the Preferred Series B are as stated Company on or prior to such Closing Date in connection with the Certificate attached as Exhibit A to execution and delivery of this Agreement, the offer, issuance and sale of the Shares and the consummation of the transactions contemplated by this Agreement. The Conversion Stock has , have been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securitiestaken.
(e) The certificates representing Company is authorized by its Certificate of Incorporation to issue 20,000,000 shares of Common Stock and 1,800,000 shares of Preferred Stock. Immediately prior to the Preferred Closing Date there were 5,803,039 shares of Common Stock, 200,000 shares of Series A Stock, 400,000 shares of Series B Stock and 600,000 shares of Series C Stock issued and outstanding. All shares outstanding immediately prior to the Closing Date have been duly authorized and validly issued. To the best of such counsel's knowledge, the Company holds no shares in its treasury. Except for shares of Common Stock and shares of Common Series A Stock, Series B Stock are in due and proper form and have been duly and validly executed by Series C Stock, the officers Company has no other authorized series or class of capital stock and, to the best of such counsel's knowledge, has no outstanding options, warrants or other rights to acquire securities of the Company named thereonCompany, other than as disclosed in Exhibit A to this Agreement.
(f) The executionTo the best of such counsel's knowledge, delivery, performance and compliance with no security holder of the terms Company is entitled to preemptive or similar rights as a result of the execution or delivery of this Agreement do not violate any provision of any federal, state or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision issuance of the Company's amended Articles or By-LawsShares and the Adjustment Shares other than as expressly set forth in this Agreement.
(g) All consentsAssuming the accuracy of the representations made by the Investor in Section 4, approvalsthe Company has obtained the approval or consent of all governmental agencies or bodies required for the legal and valid execution and delivery of this Agreement and the legal and valid offer, orders or authorizations of, issuance and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on sale of the part Shares and for the performance of the obligations of the Company required under all provisions of this Agreement, other than those with respect to registration rights. Assuming the accuracy of the representations made by the Investor in connection with Section 4, the execution, delivery and performance of this Agreement, the offer, issuance and sale of the Shares and the issuance of Adjustment Shares, and the consummation of the transactions contemplated by this Agreement have been obtained and are effective as will not result in any breach or violation of the Closingterms or provisions of, or constitute a default under, the Certificate of Incorporation or the bylaws of the Company or any statute, rule or regulation affecting the Company or its business. To the best of such counsel's knowledge, the execution, delivery and such counsel is performance of this Agreement by the Company, the offer, issuance and sale of the Shares and the consummation of the transactions contemplated by this Agreement will not aware result in any violation of any proceedingsagreement or other instrument to which the Company is a party or by which it is bound or to which any of its properties, assets or threat thereofbusiness is subject or any judgment, which question the validity thereofdecree or order.
(h) Based in part upon Assuming the accuracy of the representations made by the Investor in Section 4, the offer, sale, issuance and delivery of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant Shares to the terms of Investor under this Agreement are exempt from the registration and prospectus delivery requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the all applicable state securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13laws.
(i) Except as set forth for matters disclosed on the Schedule of Exceptions attached to the Agreement as Exhibit BA, such counsel is not aware has no knowledge of any actionlitigation, proceeding or governmental investigation pending or threatened against the Company or any of its officers, directors properties or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Companybusiness.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser Company shall have received from Krys, Boyle, Freedman & Sawyer, P.C., counsxx xx xxe Cxxxxxx, delivered -------------------------------- to Acquiror an opinion of Xxxxxx, Xxxxxxx & Xxxxxxx, counsel to the Company, dated as of the Closing Date, in form and substance satisfactory to the PurchaserAcquiror, to the effect that:
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State its jurisdiction of Nevada, and the Company has the requisite corporate power and authority to own it properties and to conduct its business.incorporation;
(b) The Company is not presently required to be duly qualified to do business as a foreign corporation and in any state good standing in each jurisdiction in which the properties owned or jurisdiction leased by it or the nature of the United States.business conducted by it makes such qualification necessary;
(c) The Company has the requisite corporate power and authority to executecarry on its business as it is now being conducted and to own the properties and assets it now owns, deliver and perform the Company has the full corporate power and authority to enter into this Agreement. Agreement and to consummate the transactions contemplated hereby;
(d) The Shareholders have the authority to enter into the Agreement and to consummate the transactions contemplated hereby;
(e) The only authorized capital stock of the Company consists of One Hundred (100) shares of no par Common Stock, One Hundred (100) shares of which are issued and outstanding, that such issued shares have been duly and validly authorized and issued and are fully paid and nonassessable;
(f) Based upon an examination of the records of the Company, there are no outstanding options, warrants, calls, commitments or other rights or agreements to which the Company or any Shareholder is bound relating to the issuance, sale or redemption of common stock of the Company to purchase or acquire any capital stock of the Company;
(g) All corporate action by the Company required in order to authorize the transactions contemplated hereby has been duly and validly authorized by the Company, taken; and this Agreement has been duly executed and delivered by an authorized officer the Company and is the valid and binding obligation of the Company enforceable in accordance with its terms except that (i) such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors, rights and constitutes legal(ii) 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;
(h) The Shareholders have complete and unrestricted power to sell, convey, assign, transfer and deliver to Acquiror the Company Stock; and the instruments of sale, conveyance, assignment and transfer executed and delivered to Acquiror or Acquiror's Subsidiary hereunder are duly executed, are valid and binding obligations of the CompanyShareholders, subject and effectively vest in Acquiror's Subsidiary good, clear, marketable title in and to bankruptcy such Company Stock as contemplated by this Agreement, free and other laws clear of general application affecting the rights and remedies any lien, charge or encumbrance of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:any kind whatsoever;
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock Neither the execution and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock have been duly authorized, issued and delivered, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective rights, privileges and preferences of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms delivery of this Agreement do not violate any provision of any federal, state or local law, rule or regulation or of any judgment, writ, decree or order binding upon by the Shareholders and the Company or any provision of the Company's amended Articles or By-Laws.
(g) All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required in connection with nor the consummation of the transactions contemplated by this Agreement have been obtained and are effective as hereby will violate the Certificate of Incorporation or By-Laws of the ClosingCompany will violate, and such counsel is not aware conflict with, or constitute a default under, or cause the acceleration of maturity of any proceedingsdebt or obligation pursuant to, or threat thereofresult in the creation or imposition of any security interest, which question the validity thereof.
(h) Based in part lien or other encumbrance upon the representations any property or assets of the Purchaser in this AgreementCompany under, the offer and sale of the Series B Preferred pursuant to the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereofany contract, and from the qualification requirements of the securities laws of the State of Nevadacommitment, agreement, trust, understanding, arrangement or all requisite permits, qualifications and orders have been obtained. 13
(i) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware restriction of any action, proceeding kind to which the Company is a party or investigation pending against by which the Company or any of its officers, directors Shareholder is bound or employeesviolates any statute or law, or that any of the foregoing has received any threat thereofjudgment, which questions the validity of the Agreement decree, order, regulation or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware rule of any litigation pending, against the Company court or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Company.governmental authority;
(j) The Company is not engaged in or threatened with any legal action or other proceeding or has incurred or been charged with or is under investigation with respect to any violation of any provisions federal, state or local law or administrative regulation which if adversely determined might adversely affect or impair the business or condition, financial or otherwise, of its Articles the Company.
(k) No consent of any governmental body of any other person is required for the consummation by the Company of the transactions contemplated hereby, except consents the need for which is disclosed in this Agreement or Bylawsthe Disclosure Schedule, all of which have been duly and neither validly obtained;
(1) To the best knowledge of such documents counsel, the Company is in violation of any provision of the Corporation Law of the State of Nevada.compliance with all applicable laws and regulations;
Appears in 1 contract
Samples: Stock Purchase Agreement (Enviro Clean of America Inc)
Opinion of the Company's Counsel. The Purchaser shall have received from KrysBxxxxxx X. Xxxxxx, BoyleGeneral Counsel for the Company, Freedman & Sawyerher opinion, P.C., counsxx xx xxe Cxxxxxx, an opinion dated the Closing Datedate of the Closing, in form and substance reasonably satisfactory to the Purchaser, to the effect that, subject to customary exceptions:
(a) The each of the Company and its Subsidiaries is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the State state of Nevadaits incorporation, and each of the Company and its Subsidiaries has the all requisite corporate power and authority to own it properties and operate its properties, to carry on its businesses as now conducted and to conduct carry out and perform its business.obligations under the terms of this Agreement, the Warrant Agreement and the Registration Rights Agreement;
(b) The the Company is not presently required to be duly licensed or qualified to do business and is in good standing as a foreign corporation in any state or the State of California and each other jurisdiction wherein the nature of the United States.business transacted by the Company or the nature of the property owned or leased by it requires such licensing or qualification. Each of the Subsidiaries is duly licensed or otherwise qualified in each state wherein the nature of the business transacted by such Subsidiary or the nature of the property owned or leased by it requires such licensing or qualification and where failure to be so licensed or qualified would reasonably be expected to, singly or in the aggregate, have a Material Adverse Effect on the Company;
(c) The Company has the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer capital stock of the Company consists of 50,000,000 shares of Common Stock and constitutes legal1,000,000 shares of preferred stock, valid and binding obligations all of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability outstanding shares of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization capital stock of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock have been duly authorized, issued and delivered, are validly outstandingissued, fully paid and nonassessable, ; upon the issuance and have been approved by all requisite shareholder action. The respective rights, privileges and preferences sale of the Preferred Series B are as stated in Shares, the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, Shares will be validly issued, fully paid and nonassessable.
; and upon the valid exercise (ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges including payment of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms of this Agreement do not violate any provision of any federal, state or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision of the Company's amended Articles or By-Laws.
(g) All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required in connection with the consummation of the transactions contemplated by this Agreement have been obtained and are effective as of the Closing, and such counsel is not aware of any proceedings, or threat thereof, which question the validity thereof.
(h) Based in part upon the representations of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant to the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13
(i) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware of any action, proceeding or investigation pending against the Company or any of its officers, directors or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Company.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.exercise
Appears in 1 contract
Samples: Stock Purchase Agreement (Thirty Five East Investments LLC)
Opinion of the Company's Counsel. The Purchaser shall have received from Krys, Boyle, Freedman Freexxxx & SawyerXawyxx, P.C.X.C., counsxx xx xxe Cxxxxxxcounsel to the Company, an opinion dated the Closing Date, in form and substance satisfactory to the Purchaser, to the effect that:
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of NevadaColorado, and the Company has the requisite corporate power and authority to own it properties and to conduct its business.
(b) The Company is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction of the United States.
(c) The Company has the requisite corporate power and authority to execute, deliver and perform this Agreement and the Option Agreement. The Agreement has and the Option Agreement have been duly and validly authorized by the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) The authorized capital stock of the Company consists of 15,000,000 shares of Common Stock, of which 5,831,807 shares are issued and outstanding, and 5,000,000 shares of Preferred Stock, of which no shares are issued and outstanding. The outstanding shares have been duly authorized and validly issued, and are fully paid and nonassessable. Options to purchase 432,000 shares of Common Stock are issued and outstanding under the Company's employee stock option plan. All outstanding securities of the Company were issued in compliance with applicable federal and state securities laws. Except as set forth above, there are no option, warrants or other rights to purchase any of the Company's capital stock.
(ii) PREFERRED STOCK. 5,000,000 shares of Stock, of which no shares are issued and outstanding.
(iii) COMMON STOCK. 15,000,000 shares of Common Stock, of which (A) 500,000 5,831,807 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 2,303,290 shares have been designated as Series B Preferred and are being purchased pursuant to this Agreement. Such shares of Series B Preferred Stock have been duly authorized, issued and delivered, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective rights, privileges and preferences of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 All such shares of Common Stock, of which 3,000,000 shares Stock have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities lawslaws and approved by all requisite shareholder action.
(iiiiv) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, ; (DB) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 347,975 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreementherein, (FC) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 432,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms of this Agreement and the Option Agreement do not violate any provision of any federal, state or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision of the Company's amended Articles of Incorporation ("Articles") or By-Laws.
(g) All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required in connection with the consummation of the transactions contemplated by this Agreement and the Option Agreement have been obtained and are effective as of the Closing, and such counsel is not aware of any proceedings, or threat thereof, which question the validity thereof.
(h) Based in part upon the representations of the Purchaser in this Agreement, the offer and sale of the Series B Preferred Common Stock pursuant to the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13.
(i) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware of any action, proceeding or investigation pending against the Company or any of its officers, directors or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Company.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of NevadaColorado.
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser On or before the Effective ---------------------------------- Date, the Company shall have received from Krysdelivered to Pacific an opinion, Boylesatisfactory to Pacific, Freedman & Sawyerof outside counsel to the Company, P.C., counsxx xx xxe Cxxxxxx, an opinion dated the Closing Effective Date, in form and substance satisfactory to the Purchaser, substantially to the effect that:
(a) The Company is a corporation duly organized, organized and validly existing and in good standing under the laws of the State state of Nevada, its incorporation and the Company has the requisite corporate power and authority to own and hold the properties owned and leased by it properties and to conduct its businesscarry on the business in which it is engaged. The Company has the corporate power and authority to enter into this Agreement, to issue and sell the Conversion Shares and to carry out the provisions of this Agreement.
(b) The Company Agreement has been duly authorized, executed and delivered by the Company, is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction the legal, valid and binding agreement of the United StatesCompany and is enforceable against the Company in accordance with its terms, subject, as to the enforcement of remedies, to (i) limitations under applicable, bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization, and other laws affecting the rights of creditors generally and to judicial limitations on the enforcement of the remedy of specific performance and other equitable remedies and (ii) limitations as rights of indemnification or contribution may be limited by principles of public policy.
(c) The Company has the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock Conversion Shares have been duly authorized, validly issued and delivered, delivered by the Company. The Conversion Shares are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder actionare entitled to the rights, preferences and provisions of the Company's Articles of Incorporation and the benefits of the provisions of this Agreement applicable thereto. The respective rights, privileges certificates evidencing the Conversion Shares are in valid and preferences sufficient form.
(d) All corporate proceedings required by law or by the provisions of this Agreement to be taken by the Board of Directors and shareholders of the Preferred Series B are as stated Company in connection with the Certificate attached as Exhibit A to execution and delivery of this Agreement, the offer, issuance and sale of the Conversion Shares and the consummation of the transactions contemplated by this Agreement. The Conversion Stock has , have been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securitiestaken.
(e) The certificates representing shares Assuming the accuracy of the Preferred Stock representations made by Pacific in Section 16 of this Agreement, the Company has obtained the approval or consent of all governmental agencies or bodies required pursuant to the laws of the State of Colorado or federal laws of the United States for the legal and shares valid execution and delivery of Common Stock are in due this Agreement and proper form the legal and have been duly valid offer, issuance and validly executed by sale of the officers Conversion Shares and for the performance of the obligations of the Company named thereon.
(f) under all provisions of this Agreement. The Company is not in violation of any term, provision or condition of its Articles of Incorporation or bylaws. Assuming the accuracy of the representations made by Pacific in Section 16 of this Agreement, the execution, delivery, delivery and performance and compliance with the terms of this Agreement do not violate any provision of any federalAgreement, state or local lawthe offer, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision issuance and sale of the Company's amended Articles or By-Laws.
(g) All consents, approvals, orders or authorizations of, Conversion Shares and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required in connection with the consummation of the transactions contemplated by this Agreement have been obtained and are effective as will not result in any breach or violation of the Closingterms or provisions of, and or constitute a default under, the Articles of Incorporation or the bylaws of the Company, any laws of the State of Colorado or the federal laws of the United States affecting the Company or its business or any agreement known to such counsel to which the Company is not aware a party with any of any proceedings, or threat thereof, which question the validity thereofits shareholders.
(hf) Based in part upon Assuming the accuracy of the representations made by Pacific in Section 16 of the Purchaser in this Agreement, the offer offer, sale, issuance and sale delivery of the Series B Preferred pursuant Conversion Shares to Pacific under the terms of circumstances contemplated by this Agreement are exempt from the registration and prospectus delivery requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the applicable securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13
(i) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware of any action, proceeding or investigation pending against the Company or any of its officers, directors or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the CompanyColorado.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.
Appears in 1 contract
Samples: Conversion and Rights Agreement (Pacific Usa Holdings Corp)
Opinion of the Company's Counsel. The Purchaser shall have received from KrysBarbxxx X. Xxxxxx, BoyleXxneral Counsel for the Company, Freedman & Sawyerher opinion, P.C., counsxx xx xxe Cxxxxxx, an opinion dated the Closing Datedate of the Closing, in form and substance reasonably satisfactory to the Purchaser, to the effect that, subject to customary exceptions:
(a) The each of the Company and its Subsidiaries is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the State state of Nevadaits incorporation, and each of the Company and its Subsidiaries has the all requisite corporate power and authority to own it properties and operate its properties, to carry on its businesses as now conducted and to conduct carry out and perform its business.obligations under the terms of this Agreement, the Warrant Agreement and the Registration Rights Agreement;
(b) The the Company is not presently required to be duly licensed or qualified to do business and is in good standing as a foreign corporation in any state or the State of California and each other jurisdiction wherein the nature of the United States.business transacted by the Company or the nature of the property owned or leased by it requires such licensing or qualification. Each of the Subsidiaries is duly licensed or otherwise qualified in each state wherein the nature of the business transacted by such Subsidiary or the nature of the property owned or leased by it requires such licensing or qualification and where failure to be so licensed or qualified would reasonably be expected to, singly or in the aggregate, have a Material Adverse Effect on the Company;
(c) The Company has the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer capital stock of the Company consists of 50,000,000 shares of Common Stock and constitutes legal1,000,000 shares of preferred stock, valid and binding obligations all of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability outstanding shares of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization capital stock of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock have been duly authorized, issued and delivered, are validly outstandingissued, fully paid and nonassessable, ; upon the issuance and have been approved by all requisite shareholder action. The respective rights, privileges and preferences sale of the Preferred Series B are as stated in Shares, the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, Shares will be validly issued, fully paid and nonassessable.
; and upon the valid exercise (iiincluding payment of the exercise price) Common Stock. 10,000,000 shares of Common Stockthe Warrants, of which 3,000,000 shares have been duly authorized, issued and delivered and are the Warrant Shares will be validly outstandingissued, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.nonassessable;
(iii) Except for (Ad) the conversion privileges execution, delivery and performance of each of the Series A Preferred Stock, (B) Documents and all other agreements and instruments contemplated thereby and the conversion privileges consummation of all transactions contemplated thereby have been duly authorized by all requisite corporate action of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise Company; each of the stock option granted Documents and all other agreements and instruments contemplated thereby constitutes a valid and binding obligation of the Company, enforceable in the Sanyo Agreementaccordance with its terms, (F) 500,000 shares subject to bankruptcy, insolvency, fraudulent transfer, equitable subordination, reorganization, moratorium and similar laws of Common Stock reserved for issuance upon exercise general applicability relating to or affecting creditors' rights and general principles of outstanding Class A Warrantsequity, (G) 150,000 shares including, without limitation, concepts of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants materiality, reasonableness, good faith and (H) 657,000 shares of Common Stock reserved for issuance to employees fair dealing; and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best knowledge of counsel's knowledgesuch counsel (except as provided below), options, warrants, conversion privileges or other rights (or agreements the execution and delivery by the Company of any such rights) outstanding to purchase or otherwise obtain any each of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms of this Agreement do not violate any provision of any federal, state or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision of the Company's amended Articles or By-Laws.
(g) All consents, approvals, orders or authorizations of, Documents and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required in connection with other agreements and other instruments contemplated and the consummation of the transactions contemplated by this Agreement have been obtained thereby do not and are effective as will not (with or without the giving of notice, the Closing, and such counsel is not aware lapse of time or both) result in the creation of any proceedingslien, security interest, charge or threat thereof, which question the validity thereof.
(h) Based in part encumbrance upon the representations of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant to the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the securities laws of the State of Nevada, Company's or all requisite permits, qualifications and orders have been obtained. 13
any Subsidiary's capital stock or assets or (i) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware of any action, proceeding conflict with or investigation pending against the Company or any of its officers, directors or employees, or that any result in a breach of the foregoing has received terms, conditions or provisions of, (ii) constitute a default under, (iii) give any threat thereof, which questions the validity of the Agreement or third party the right to accelerate any obligation under or (iv) result in a violation of, the Certificate of Incorporation or Bylaws of the Company (where such opinion shall not be qualified as to such counsel's best knowledge), or its officersany law, directors and employees to enter into such agreement statute, rule, regulation, instrument, order,
(e) no consent, approval, authorization, registration or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware qualification of any litigation pending, against the Company Governmental Authority or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations third party is required to be obtained by the Company or any of its officers Subsidiaries in connection with the execution, delivery or directors with possible investors performance by the Company of each of the Documents, except such consents, approvals, authorizations, registration or qualifications as may be required under the HSR Act, which shall have been received prior to the Closing, and state securities laws, the Securities Act, the Exchange Act and the rules and regulations of the New York Stock Exchange;
(f) the Company has authorized the issuance and sale to the Purchaser of the Shares and Warrants; each share of Common Stock issued and sold to the Purchaser hereunder has, and each Warrant Share issued upon the valid exercise of Warrants will have, the rights set forth in the Company.'s Certificate of Incorporation, and each Warrant has the terms and rights set forth in the Warrant Agreement; and
(jg) The Company is the acquisition of the Shares and the Warrants and the exercise of the Warrants by the Purchaser will not in violation of cause the Purchaser or any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision Affiliates to become (i) an "Acquiring Person" for purposes of the Corporation Law Rights Agreement or (ii) subject to the restrictions against business combinations contained in Section 203 of the State of NevadaDelaware General Corporation Law.
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser Company shall have received from Krysdelivered to each Series E Purchaser an opinion, Boylesatisfactory to each of the Series E Purchasers, Freedman of Xxxxxxxxxxx Xxxxx & SawyerXxxxxxxx, P.C.counsel for the Company, counsxx xx xxe Cxxxxxx, an opinion dated as of the Second Closing Date, in form and substance satisfactory to the Purchaser, to the effect that:
(a) The Company is a corporation duly organized, incorporated and validly existing and in good standing under the laws of the State of NevadaMinnesota, and the Company has the requisite corporate power and authority to own and hold the properties owned and leased by it properties and to conduct its business.
(b) The Company carry on the business in which it is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction of the United States.
(c) engaged. The Company has the requisite corporate power and authority to executeenter into this Amendment Number 1 and to issue and sell the Warrants and the Warrant Stock, deliver and perform to carry out the provisions of this Agreement. The Agreement has Amendment Number 1; (b) This Amendment Number 1 and the Warrants have been duly authorized, executed and validly authorized delivered by the Company, duly executed and delivered by an authorized officer of are the Company and constitutes legal, valid and binding obligations agreements of the CompanyCompany and are enforceable against the Company in accordance with their respective terms, subject to bankruptcy applicable bankruptcy, insolvency, moratorium, reorganization, and other similar laws of general application affecting the enforcement of creditors' rights generally and remedies of creditors and except insofar as to judicial limitations on the enforceability enforcement of the indemnification provisions remedy of Section 8.11 of the Agreement may be limited by applicable laws specific performance and except that no opinion need be given as to the availability of other equitable remedies.
; (dc) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock Warrants have been duly authorized, validly issued and delivereddelivered by the Company and are fully paid, non-assessable and free and clear of any liens, charges, claims and encumbrances except any created under this Amendment Number 1 or by or through the Series E Purchasers. The Warrants are validly outstandingin valid and sufficient form and the holders of the Warrants are entitled to the rights set forth in the Warrants; (d) The amendment of the Restated Articles to include the provisions set forth in the Amendment has been adopted by all necessary corporate action, fully paid and nonassessablethe Amendment has been duly filed with the Secretary of State of the State of Minnesota, no other or additional filing or recording is necessary in order to amend the Restated Articles to include the provisions set forth in the Amendment, and have been approved by all requisite shareholder action. The respective the holders of the shares of Series E Preferred are entitled to the rights, privileges preferences and preferences provisions of the Preferred Series B are Restated Articles, as stated in amended by the Certificate attached as Exhibit A Amendment; (e) All corporate proceedings required by law or by the provisions of this Amendment Number 1 to be taken by the Board of Directors and shareholders of the Company on or prior to the Agreement. The Conversion Second Closing Date in connection with the execution and delivery of this Amendment Number 1 and the adoption of the Amendment, and the issuance and delivery of the Warrants and the Warrant Stock has have been duly and validly reserved for issuance andtaken; (f) The Company is authorized by its Restated Articles, when issued in accordance with as amended by the CertificateAmendment, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 to issue 25,000,000 shares of Common Stock, $0.01 par value, 4,458,852 shares of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred StockPreferred, (B) the conversion privileges $1.00 par value, 2,400,000 shares of the Series B Preferred, $1.25 par value, 2,292,635 shares of Series C Preferred, $1.00 par value, 2,083,332 shares of Series D Preferred, $1.00 par value, and 857,143 shares of Series E Preferred, $1.00 par value. Immediately prior to the Second Closing Date there were (Cto the best of such counsel's knowledge) 1,677,076 shares of Common Stock, 4,458,852 shares of Series A Preferred, 2,400,000 shares of Series B Preferred, 2,292,635 shares of Series C Preferred, 2,083,332 shares of Series D Preferred and 857,143 shares of Series E Preferred issued and outstanding. All shares outstanding immediately prior to the rights Second Closing Date have been duly authorized and validly issued and are fully paid and nonassessable. To the best of first refusal contained such counsel's knowledge, the Company holds no shares in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 its treasury. Except for such shares of Common Stock reserved and shares of Series A Preferred, Series B Preferred, Series C Preferred, Series D Preferred and Series E Preferred, the Company has no other authorized series or class of capital stock and, to the best of such counsel's knowledge, except for issuance upon the exercise Warrants and outstanding options to purchase an aggregate of the stock option granted in the Sanyo Agreement, (F) 500,000 1,723,046 shares of Common Stock Stock, has no outstanding options, warrants or other rights to acquire securities of the Company. To the best of such counsel's knowledge, except as set forth in the Amended and Restated Registration Rights Agreement and the Restated Articles, as amended by the Amendment, the Company is not subject to any obligation to register or redeem any outstanding Securities of the Company; (g) The requisite number of shares of Warrant Stock, based upon the terms of the Warrants in effect as of the Second Closing Date, have been validly authorized and reserved for issuance upon exercise of outstanding Class A the Warrants, (G) 150,000 shares and when issued upon such exercise in accordance with the terms and conditions of Common Stock reserved for issuance upon exercise of outstanding Underwriter's the Warrants and (H) 657,000 shares those of Common this Amendment Number 1 the Warrant Stock reserved for issuance to employees will be duly authorized and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to issued and will be fully paid and nonassessable. To the best of such counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers no security-holder of the Company named thereon.
is entitled to preemptive or similar rights to purchase the Warrants or the Warrant Stock contemplated to be issued pursuant to this Amendment Number 1; (fh) The executionAssuming the accuracy of the representations made by the Series E Purchasers in Article 7 of the Series E Purchase Agreement, delivery, performance the Company has obtained the approval or consent of all governmental agencies or bodies required for the legal and compliance with the terms valid execution and delivery of this Agreement do not violate any provision of any federalAmendment Number 1 and the legal and valid offer, state or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision issuance and sale of the Company's amended Articles or By-Laws.
(g) All consents, approvals, orders or authorizations of, Warrants and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part offer of the Warrant Stock to the Series E Purchasers through exercise by them of the Warrants and for the performance of the obligations of the Company required under all provisions of this Amendment
Number 1. Assuming the accuracy of the representations made by the Series E Purchasers in connection with Article 7 of the Series E Purchase Agreement, the execution, delivery and performance of this Amendment Number 1, and the offer, issuance and sale of the Warrants and the Warrant Stock and the consummation of the transactions contemplated by this Agreement have been obtained and are effective as Amendment Number 1 will not result in any breach or violation of the Closing, and such counsel is not aware of any proceedingsterms or provisions of, or threat thereofconstitute a default under, which question the validity thereof.
(h) Based in part upon Restated Articles, as amended by the representations Amendment, or the Restated Bylaws of the Purchaser in this AgreementCompany or any statute, rule or regulation affecting the Company or its business. To the best of such counsel's knowledge, the offer execution, delivery and performance of this Amendment Number 1 by the Company, the offer, issuance and sale of the Warrants and the Warrant Stock and the consummation of the transactions contemplated by this Amendment Number 1 will not result in any violation of any agreement or other instrument of which such counsel is aware to which the Company is a party or by which it is bound or to which any of its properties, assets or business is subject or any judgment, decree or order; (i) Assuming the accuracy of the representations made by the Series B Preferred pursuant E Purchasers in Article 7 of the Series E Purchase Agreement, the offer, sale, issuance and delivery of the Warrants and the offer of the Warrant Stock to the terms Series E Purchasers through exercise by them of the Warrants under the circumstances contemplated by this Agreement Amendment Number 1 are exempt from the registration and prospectus delivery requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the all applicable state securities laws of the State of Nevada, or all requisite permits, qualifications laws; and orders have been obtained. 13
(ij) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit Bfor XxXxxxx, et. al., vs. Select Comfort Corporation, such counsel is not aware has no knowledge of any actionlitigation, proceeding or governmental investigation pending or threatened against the Company or any of its officers, directors properties or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Companybusiness.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.
Appears in 1 contract
Samples: Series E Stock Purchase Agreement (Select Comfort Corp)
Opinion of the Company's Counsel. The Purchaser shall have received from Krys, Boyle, Freedman Freexxxx & SawyerXawyxx, P.C.X.C., counsxx xx xxe Cxxxxxxcounsel to the Company, an opinion dated the Closing Date, in form and substance satisfactory to the Purchaser, to the effect that:
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada, and the Company has the requisite corporate power and authority to own it properties and to conduct its business.
(b) The Company is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction of the United States.
(c) The Company has the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) Preferred StockPREFERRED STOCK. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock have been duly authorized, issued and delivered, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective rights, privileges and preferences of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common StockCOMMON STOCK. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms of this Agreement do not violate any provision of any federal, state or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision of the Company's amended Articles or By-Laws.
(g) All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required in connection with the consummation of the transactions contemplated by this Agreement have been obtained and are effective as of the Closing, and such counsel is not aware of any proceedings, or threat thereof, which question the validity thereof.
(h) Based in part upon the representations of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant to the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13.
(i) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware of any action, proceeding or investigation pending against the Company or any of its officers, directors or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Company.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser Company shall have received from Krysdelivered to Xxxxxx, BoyleXxxxxxx & Xxxxx, Freedman & Sawyer, P.C., counsxx xx xxe Cxxxxxx, Incorporated an opinion of Xxxxxxxxxx & Xxxxx, P.A., counsel for the Company, dated the Closing Date, in form and substance satisfactory to the Purchaserclosing date, to the effect that:
(a) The Company is a corporation duly organized, organized and validly existing and in good standing under the laws of the State state of Nevadaits incorporation, and the Company has the requisite corporate power and authority to own and hold the properties owned and leased by it properties and to conduct its businesscarry on the business in which it is engaged. The Company has the corporate power and authority to enter into this Agreement, to issue and sell the Shares, Warrants and the Warrant Shares and to carry out the provisions of this Agreement.
(b) The Company This Agreement has been duly authorized, executed and delivered by the Company, and is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction the legal, valid and binding agreement of the United StatesCompany and is enforceable against the Company in accordance with its terms, subject, as to the enforcement of remedies, to limitations under applicable bankruptcy, insolvency, moratorium, reorganization, and other laws affecting the rights of creditors generally and to judicial limitations on the enforcement of the remedy of specific performance and other equitable remedies.
(c) The Company has Securities being purchased on the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock closing date have been duly authorized, validly issued and delivereddelivered by the Company, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective are entitled to the rights, privileges preferences and preferences of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any provisions of the Company's securitiesarticles of incorporation and the benefits of the provisions of this Agreement applicable thereto. The certificates evidencing the Shares and the Warrants are in valid and sufficient form.
(ed) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed All corporate proceedings required by law or by the officers provisions of this Agreement to be taken by the Board of Directors and shareholders of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms of this Agreement do not violate any provision of any federal, state on or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision of the Company's amended Articles or By-Laws.
(g) All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required prior to such closing date in connection with the execution and delivery of this Agreement, the offer, issuance and sale of the Securities and the consummation of the transactions contemplated by this Agreement Agreement, have been obtained duly and are effective as of the Closing, and such counsel is not aware of any proceedings, or threat thereof, which question the validity thereofvalidly taken.
(he) Based The Company is authorized by its articles of incorporation to issue 12,500,000 shares of capital stock, which consists of the following: (a) 10,000,000 shares of common stock, $.05 par value, of which there are outstanding 3,111,259 shares, (b) 400,000 shares of Convertible Preferred Stock, of which there are outstanding 150,000 shares, (c) 150,000 shares of Series A Convertible Preferred Stock, of which there are outstanding 74,367, and (d) 1,950,000 undesignated shares. All shares outstanding immediately prior to the closing date have been duly authorized and validly issued. Except for the Common Stock, the Convertible Preferred Stock and the Series A Convertible Preferred Stock, the Company has no other authorized series or class of capital stock and, to the best of such counsel's knowledge and without any special inquiry into this matter, has no outstanding options, warrants or other rights to acquire securities of the Company, other than as disclosed in part Exhibit B.
(f) The requisite number of Warrant Shares have been validly authorized and reserved for issuance upon exercise of the Warrants, and when issued upon such exercise, will be authorized, validly issued and outstanding, fully paid and nonassessable. To the best of such counsel's knowledge, except for with regard to the outstanding shares of Stock, no security holder of the Company is entitled to preemptive or similar rights as a result of the execution or delivery of this Agreement or the issuance of the Shares, Warrants, or Warrant Shares.
(g) Assuming the accuracy of the representations made by the Investors in their Acceptances and Section 4 hereof, the offer, sale, issuance and delivery of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant Securities to the terms of Investors under the circumstances contemplated by this Agreement are exempt from the registration and prospectus delivery requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the all applicable state securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13laws.
(ih) Except for matters disclosed as set forth on the Schedule part of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware has no knowledge of any actionlitigation, proceeding or governmental investigation pending or threatened against the Company or any of its officers, directors properties or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Companybusiness.
(ji) The Company is Nothing has come to the attention of counsel which would lead counsel to reasonably believe that the Company's business and operations are not being conducted in violation of any provisions of its Articles or Bylawsall material respects in compliance with applicable laws, rules, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevadaregulations.
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser Company shall have received from Krysdelivered to Xxxxxx, BoyleXxxxxxx & Xxxxx, Freedman & SawyerIncorporated, P.C., counsxx xx xxe Cxxxxxxon behalf of Investors, an opinion of Xxxxxxxxxx & Xxxxx, counsel for the Company, dated the Closing Date, in form and substance satisfactory to the Purchaserclosing date, to the effect that:
(a) The Company is a corporation duly organized, organized and validly existing and in good standing under the laws of the State state of Nevadaits incorporation, and the Company has the requisite corporate power and authority to own and hold the properties owned and leased by it properties and to conduct its businesscarry on the business in which it is engaged. The Company has the corporate power and authority to enter into this Agreement, to issue and sell the Securities and to carry out the provisions of this Agreement.
(b) The Company This Agreement has been duly authorized, executed and delivered by the Company, and is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction the legal, valid and binding agreement of the United StatesCompany and is enforceable against the Company in accordance with its terms, subject, as to the enforcement of remedies, to limitations under applicable bankruptcy, insolvency, moratorium, reorganization, and other laws affecting the rights of creditors generally and to judicial limitations on the enforcement of the remedy of specific performance and other equitable remedies.
(c) The Company has Securities being purchased on the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock closing date have been duly authorized, validly issued and delivereddelivered by the Company, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective are entitled to the rights, privileges preferences and preferences of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any provisions of the Company's securities.
(e) Certificate of Incorporation and the benefits of the provisions of this Agreement applicable thereto. The certificates representing shares of evidencing the Preferred Stock Shares and shares of Common Stock the Warrants are in due and proper form and have been duly and validly executed form.
(d) All corporate proceedings required by law or by the officers provisions of this Agreement to be taken by the Board of Directors and shareholders of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms of this Agreement do not violate any provision of any federal, state on or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision of the Company's amended Articles or By-Laws.
(g) All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required prior to such closing date in connection with the execution and delivery of this Agreement, the offer, issuance and sale of the Securities and the consummation of the transactions contemplated by this Agreement Agreement, have been obtained duly and validly taken.
(e) The Company is authorized by its Certificate of Incorporation, as amended, to issue 7,450,000 shares of capital stock, which consists of the following: (a) 7,400,000 shares of common stock, $0.15 par value, of which there are effective outstanding 2,935,720 shares, and (b) 50,000 shares of serial preferred stock of which no shares were issued or outstanding. To the best of such counsel's knowledge, all shares outstanding immediately prior to the closing date have been duly authorized and validly issued. Other than as disclosed on Exhibit B, the Company has no other authorized series or class of capital stock and, to the best of such counsel's knowledge and without any special inquiry into this matter, has no outstanding options, warrants or other rights to acquire securities of the Company.
(f) The requisite number of Warrant Shares have been validly authorized and reserved for issuance upon exercise of the Warrants, and when issued upon such exercise in accordance with the terms and conditions of the Warrants, will be authorized, validly issued and outstanding, fully paid and nonassessable. To the best of such counsel's knowledge, no security holder of the Company is entitled to preemptive or similar rights as a result of the execution or delivery of this Agreement or the issuance of the Securities.
(g) Assuming (i) the accuracy of the representations made by the Investors in their Acceptances and Section 4 hereof, (ii) that neither the Company, the Sales Agent nor any person acting on behalf of either the Company or the Sales Agent offered or sold the Securities by any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act; (iii) that any person or entity that purchases securities after the date hereof in a transaction that can be "integrated" with the sales of the Securities will be an accredited investor as of the Closingdate of such purchase; and (iv) that, based upon our inquiry and such counsel is not aware of any proceedingsinformation provided to us by the Company, each person or threat thereof, which question the validity thereof.
(h) Based in part upon the representations entity that purchased securities of the Purchaser Company directly from the Company or its agents and without registration between the date six months prior to the Closing and the date of this Agreement was, as of the date of such purchase, an "accredited investor" as defined in this AgreementRule 501 of Regulation D, the offer sale, issuance and sale delivery of the Series B Preferred pursuant Securities to the terms of Investors under the circumstances contemplated by this Agreement are exempt from the registration and prospectus delivery requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13Act.
(ih) Except as set forth on the Schedule of Exceptions attached to the Agreement as for matters disclosed in Exhibit B, such counsel is not aware has no knowledge of any actionmaterial litigation, proceeding or governmental investigation pending or threatened against the Company or any of its officers, directors properties or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Companybusiness.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser shall have -------------------------------- received from Krysthe opinion of Irell & Xxxxxxx LLP, Boyle, Freedman & Sawyer, P.C., counsxx xx xxe Cxxxxxx, an opinion dated counsel to the Closing DateCompany, in form and substance reasonably satisfactory to the PurchaserPurchaser and its counsel, to the effect that:
: (ai) The the Company is a corporation and each of the Company Subsidiaries are corporations duly organized, validly existing and in good standing under the laws of the State their respective jurisdictions of Nevadaincorporation, and each 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; (ii) the Company has and each of the requisite corporate power and authority to own it properties and to conduct its business.
(b) The Company is not presently required to be Subsidiaries are duly qualified to do business as a foreign corporation in any state all jurisdictions where the character of their respective properties or jurisdiction the nature of their respective activities makes such qualification necessary and where the failure to qualify would be materially adverse to the Company or the Company Subsidiaries, individually; (iii) to the actual best knowledge of such counsel, the authorized, issued and outstanding capital stock of the United States.
(c) The Company has and the requisite corporate power Company -45- Subsidiaries are as set forth in Section 2.2 of this Agreement and authority the Company Disclosure Schedule or in such opinion, and to executethe actual best knowledge of such counsel, deliver each of the issued and perform this Agreement. The Agreement outstanding shares of such stock has been duly authorized and validly issued and is fully paid and non-assessable; (iv) 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 Board of Directors and stockholders of the Company, and this Agreement and all other Company Documents have been duly executed and delivered by an authorized officer of the Company and constitutes legal, constitute valid and legally binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
; (d) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock have been duly authorized, issued and delivered, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective rights, privileges and preferences of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (Av) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants execution and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms delivery of this Agreement do not and the other Company Documents did not, and the consummation of the transactions contemplated hereby or thereby will not, violate any provision of any federalagreement, state instrument, order, judgment or local lawdecree, rule or regulation or of any judgmentwhich such counsel has actual knowledge, writ, decree or order binding upon to which the Company or any provision of the Company Subsidiaries is a party or by which it is bound; (vi) the holders of the Company Common Stock are not entitled to statutory appraisal rights under Section 262 of the DGCL; (vii) except as may be specified by such counsel, such counsel does not know of any material suit or proceeding pending or threatened against or affecting the Company or the Company Subsidiaries, its business or properties or the consummation of the transactions contemplated hereunder; (viii) the Articles of Merger and Certificate of Merger have been duly authorized by all requisite action of the Board of Directors and stockholders of the Company's amended Articles or By-Laws.
, have been duly executed and delivered by the Company and, upon the filing thereof with the SDAT and the Secretary of State of the State of Delaware, will be valid and effective as a statutory merger of the Purchaser and the Company, in accordance with the terms thereof; (gix) All consents, all regulatory and governmental approvals, orders or authorizations of, consents and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part required of the Company required in connection with and the Company Subsidiaries for the consummation of the transactions contemplated by this Agreement or any of the other Company Documents have been obtained and are effective or made, and, to the best knowledge of such counsel, all such approvals, consents or filings remain in full effect as of the Closing, and date of such counsel is not aware of any proceedings, or threat thereof, which question opinion; (x) the validity thereof.
(h) Based Joint Proxy Statement complies as to form in part upon all material respects with the representations of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant to the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the securities laws Exchange Act and the applicable Rules and Regulations of the Commission thereunder, except that such counsel need express no opinion as to any financial statements, schedules and other financial or statistical information included therein or as to any information relating to or supplied by the Purchaser for inclusion therein; and (xi) to such further effect regarding the validity and sufficiency of legal proceedings and matters relative to the transactions contemplated by this Agreement as the Purchaser may reasonably request. In rendering such opinion, such counsel may rely upon the opinion of the Company's in-house counsel and may limit its opinion to matters of federal law, the law of the State of Nevada, California or all requisite permits, qualifications and orders have been obtainedthe DGCL. 13
(i) Except as In addition to the matters set forth on the Schedule of Exceptions attached above, such opinion shall also include a statement to the Agreement effect that nothing has come to the attention of such counsel which leads them to believe that the S-4, the Joint Proxy Statement, any document incorporated by reference thereto or any amendment or supplement to any of the foregoing, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading (except that such counsel need express no view as Exhibit Bto financial statements, schedules and other financial or statistical information included or incorporated by reference therein or as to any information relating to or supplied by the Purchaser for inclusion therein). With respect to such matters, such counsel may state that their belief is not aware based solely upon the actual knowledge of any action, proceeding or investigation pending against the Company or any of its officers, directors or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into lawyers at such agreement or which might result, either individually or firm who are actively involved in the aggregate, in any adverse change in the assets, condition, affairs or prospects of legal matters involving the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Companybut without independent check and verification.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.
Appears in 1 contract
Opinion of the Company's Counsel. (i) The Purchaser Company shall have received from Krys, Boyle, Freedman & Sawyer, P.C., counsxx xx xxe Cxxxxxx, an opinion of Wachtell, Lipton, Xxxxx & Xxxx, special counsel to the Company, dated the Closing Effective Date, in form and substance satisfactory to the Purchaser, to the effect that:, on the basis of facts, representations and assumptions set forth in such opinion, (A) the Merger constitutes a reorganization within the meaning of Section 368 of the Code and (B) no gain or loss will be recognized by stockholders of the Company who receive Buyer Common Shares in exchange for Company Common Shares, except with respect to cash received in lieu of fractional share interests. In rendering its opinion, Wachtell, Lipton, Xxxxx & Xxxx, may require and rely upon representations contained in letters from the Company, the Buyer, Merger Sub and stockholders of the Company.
(aii) The Company shall have received an opinion of Xxxxxxx & Xxxxxx, counsel to the Buyer and Merger Sub, dated the Effective Date, to the effect that (A) each of the Buyer and Merger Sub is a corporation duly organized, validly existing and in good standing under the laws of the State state of Nevadaits jurisdiction or incorporation, and with the Company has the requisite corporate power and authority to own it properties and to conduct carry on its business.
(b) The Company is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction of the United States.
(c) The Company has the requisite corporate power it is now being conducted and authority to execute, deliver and perform its obligations under this Agreement. The Agreement has been duly and validly authorized by to consummate the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and transactions contemplated hereby; (B) 250,000 shares have been designated as Series B Preferred this Agreement and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock the transactions contemplated hereby have been duly authorized, issued and delivered, are validly outstanding, fully paid and nonassessable, and have been approved authorized by all requisite shareholder action. The respective rights, privileges and preferences necessary corporate action of each of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly Buyer and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants Merger Sub and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges C)all consents or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms of this Agreement do not violate any provision of any federal, state or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision of the Company's amended Articles or By-Laws.
(g) All consents, approvals, orders or authorizations approvals of, and all qualifications, registrations, designations, declarations or filings filing or registrations with, any federal Governmental Authority or state governmental authority on with any third party required to be made or obtained by the part of the Company required Buyer or Merger Sub in connection with the consummation execution, delivery or performance by the Buyer or Merger Sub of the transactions contemplated by this Agreement or to consummate the Merger have been obtained and are effective as of the Closingor made, and such counsel is not aware of any proceedings, or threat thereof, which question the validity thereofall applicable waiting periods have expired.
(h) Based in part upon the representations of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant to the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13
(i) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware of any action, proceeding or investigation pending against the Company or any of its officers, directors or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Company.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser Buyer shall have received from Krysthe opinion of Xxxxx, BoyleXxxxxx & Xxxxx LLP, Freedman & Sawyercounsel to the Company (who may rely as to matters not governed by the laws of the State of Texas or United States federal law, P.C.on opinions of other counsel reasonably acceptable to the Buyer), counsxx xx xxe Cxxxxxx, an opinion dated the Closing Date, in form and substance reasonably satisfactory to the PurchaserBuyer, substantially to the effect that:
: (ai) The the Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada, and Texas; (ii) the Company has the corporate power to enter into the Transaction Documents and to consummate the transactions contemplated thereby; (iii) the execution and delivery of the Transaction Documents and the consummation of the transactions contemplated thereby have been duly authorized by requisite corporate power and authority to own it properties and to conduct its business.
(b) The Company is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction action taken on the part of the United States.
Company; (civ) The Company has each of the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement Transaction Documents has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer the Company and (assuming that it is a valid and binding obligation of the other parties thereto) is a valid and binding obligation of the Company and constitutes legalenforceable against the Company in accordance with its terms, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar (a) as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable any bankruptcy, insolvency and other laws and except that no opinion need be given as to affecting the availability enforcement of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stockcreditors' rights generally, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (Bb) 250,000 shares have been designated as Series B Preferred and purchased pursuant such enforceability is subject to this Agreement. Such shares general principles of Series B Preferred equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); (v) the TotalNet Stock have been is duly authorized, issued and delivered, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective rights, privileges and preferences of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
, (ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (Avi) the conversion privileges execution, delivery or performance of the Series A Preferred Stock, (B) Transaction Documents by the conversion privileges Company and the consummation by the Company of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights ortransactions therein contemplated, to the best of such counsel's knowledge, optionswill not conflict with or result in a breach of, warrantsor default under, conversion privileges the Company's Articles of Incorporation or By-laws or any indenture, mortgage, deed of trust, voting trust agreement, stockholders' agreement, note agreement or other rights (agreement or agreements of any such rights) outstanding other instrument to purchase which the Company is a party or otherwise obtain by which the Company is bound or to which any of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers property of the Company named thereon.
is subject and (fvii) The executionthere is no action, deliverysuit or proceeding pending, performance and compliance with the terms of this Agreement do not violate any provision of any federalor threatened, state against or local law, rule or regulation or of any judgment, writ, decree or order binding upon affecting the Company before any court or arbitrator or governmental body, agency or official (or any provision basis thereof known to us) in which there is a reasonable possibility of an adverse decision which may result in a Company Material Adverse Effect, which could adversely affect the Company's amended Articles present or By-Laws.
(g) All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part prospective ability of the Company required to perform its obligations under the Transaction Documents or which in connection with the consummation of the transactions contemplated by this Agreement have been obtained and are effective as of the Closing, and such counsel is not aware of any proceedings, or threat thereof, which manner draws into question the validity thereof.
(h) Based in part upon the representations or enforceability of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant to the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13
(i) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware of any action, proceeding or investigation pending against the Company or any of its officers, directors or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the CompanyTransaction Documents.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser Company shall have received from Krysdelivered to the Investor an opinion, Boylesatisfactory to the Investor, Freedman of Fulbright & SawyerXxxxxxxx L.L.P., P.C.counsel for the Company, counsxx xx xxe Cxxxxxx, an opinion dated the Closing Date, in form and substance satisfactory to the Purchaser, to the effect that:
(a) The Company is a corporation duly organized, organized and validly existing and in good standing under the laws of the State state of NevadaDelaware, and the Company has the requisite corporate power and authority to own and hold the properties owned and leased by it properties and to conduct its businesscarry on the business in which it is engaged. The Company has the corporate power and authority to enter into this Agreement, to issue and sell the Shares and to carry out the provisions of this Agreement.
(b) The Company This Agreement has been duly authorized, executed and delivered by the Company, is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction the legal, valid and binding agreement of the United StatesCompany and is enforceable against the Company in accordance with its terms, subject, as to the enforcement of remedies, to limitations under applicable bankruptcy, insolvency, moratorium, reorganization, and other laws affecting the rights of creditors generally and to judicial limitations on the enforcement of the remedy of specific performance and other equitable remedies.
(c) The Company has Shares being purchased on the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock Closing Date have been duly authorizedauthorized and, issued upon delivery thereof and delivered, are validly outstanding, payment therefore in accordance with the Stock Purchase Agreement will be fully paid and nonassessable, and have been approved by all requisite shareholder actionare entitled to the rights, preferences and provisions of the Company's Certificate of Incorporation and the benefits of the provisions of this Agreement applicable thereto. The respective rights, privileges certificate evidencing the Shares is in valid and preferences sufficient form under Delaware law.
(d) All corporate proceedings required by law or by the provisions of this Agreement to be taken by the Board of Directors and shareholders of the Preferred Series B are as stated Company on or prior to such Closing Date in connection with the Certificate attached as Exhibit A to execution and delivery of this Agreement, the offer, issuance and sale of the Shares and the consummation of the transactions contemplated by this Agreement. The Conversion Stock has , have been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securitiestaken.
(e) The certificates representing Company is authorized by its Certificate of Incorporation to issue 20,000,000 shares of Common Stock and 1,800,000 shares of Preferred Stock. Immediately prior to the Preferred Closing Date there were 7,203,039 shares of Common Stock, 200,000 shares of Series A Stock, 400,000 shares of Series B Stock and 600,000 shares of Series C Stock issued and outstanding. All shares outstanding immediately prior to the Closing Date have been duly authorized and validly issued. To the best of such counsel's knowledge, the Company holds no shares in its treasury. Except for shares of Common Stock and shares of Common Series A Stock, Series B Stock are in due and proper form and have been duly and validly executed by Series C Stock, the officers Company has no other authorized series or class of capital stock and, to the best of such counsel's knowledge, has no outstanding options, warrants or other rights to acquire securities of the Company named thereonCompany, other than as disclosed in Exhibit A to this Agreement.
(f) The executionTo the best of such counsel's knowledge, delivery, performance and compliance with no security holder of the terms Company is entitled to preemptive or similar rights as a result of the execution or delivery of this Agreement do not violate any provision of any federal, state or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision issuance of the Company's amended Articles or By-LawsShares and the Adjustment Shares other than as expressly set forth in this Agreement.
(g) All consentsAssuming the accuracy of the representations made by the Investor in Section 4, approvalsthe Company has obtained the approval or consent of all governmental agencies or bodies required for the legal and valid execution and delivery of this Agreement and the legal and valid offer, orders or authorizations of, issuance and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on sale of the part Shares and for the performance of the obligations of the Company required under all provisions of this Agreement, other than those with respect to registration rights. Assuming the accuracy of the representations made by the Investor in connection with Section 4, the execution, delivery and performance of this Agreement, the offer, issuance and sale of the Shares and the issuance of Adjustment Shares, and the consummation of the transactions contemplated by this Agreement have been obtained and are effective as will not result in any breach or violation of the Closingterms or provisions of, or constitute a default under, the Certificate of Incorporation or the bylaws of the Company or any statute, rule or regulation affecting the Company or its business. To the best of such counsel's knowledge, the execution, delivery and such counsel is performance of this Agreement by the Company, the offer, issuance and sale of the Shares and the consummation of the transactions contemplated by this Agreement will not aware result in any violation of any proceedingsagreement or other instrument to which the Company is a party or by which it is bound or to which any of its properties, assets or threat thereofbusiness is subject or any judgment, which question the validity thereofdecree or order.
(h) Based in part upon Assuming the accuracy of the representations made by the Investor in Section 4, the offer, sale, issuance and delivery of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant Shares to the terms of Investor under this Agreement are exempt from the registration and prospectus delivery requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the all applicable state securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13laws.
(i) Except as set forth for matters disclosed on the Schedule of Exceptions attached to the Agreement as Exhibit BA, such counsel is not aware has no knowledge of any actionlitigation, proceeding or governmental investigation pending or threatened against the Company or any of its officers, directors properties or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Companybusiness.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser Buyer shall have received from Krys, Boyle, Freedman & Sawyer, P.C., counsxx xx xxe Cxxxxxx, an the -------------------------------- opinion dated of U.S. and Netherlands and other appropriate foreign counsel to the Closing DateCompany as reasonably requested by Buyer, in form and substance reasonably satisfactory to the PurchaserBuyer and its counsel, to the effect that:
: (ai) The the Company is a corporation and each of its Subsidiaries are duly organized, validly existing and in good standing under the laws of the State their respective jurisdictions of Nevadaorganization, and each has full 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; (ii) the Company has the requisite corporate power and authority to own it properties and to conduct each of its business.
(b) The Company is not presently required to be Subsidiaries are duly qualified to do business as a foreign corporation in any state all jurisdictions where the character of their respective properties or jurisdiction the nature of their respective activities makes such qualification necessary and where the failure to qualify would be materially adverse to the Company or its Subsidiaries, individually; (iii) to the best knowledge of such counsel, the authorized, issued and outstanding capital stock or equity interests of the United States.
(c) The Company has and its Subsidiaries are as set forth in Section 2.2 of this Agreement and the requisite corporate power Company Disclosure Schedule or in such opinion, and authority to executethe actual best knowledge of such counsel, deliver each of the issued and perform this Agreement. The Agreement outstanding shares of such stock has been duly authorized and validly authorized issued and is fully paid and non-assessable; (iv) the execution, delivery and performance of this Agreement and all other documents to be executed by the Company in connection with this Agreement and all other Company Documents in the case of the Company, and other documents to be executed by the Stockholders in connection with this Agreement (the "Stockholder Documents") and, together with the Company Documents (the "Seller Documents") have been duly executed and delivered by an authorized officer the Company and the Stockholders, as the case may be and constitute valid and legally binding obligations of the Company and constitutes legalthe Stockholders, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement case may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
be; (d) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock have been duly authorized, issued and delivered, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective rights, privileges and preferences of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (Av) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants execution and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms delivery of this Agreement do not and the other Seller Documents did not, and the consummation of the transactions contemplated hereby or thereby will not, violate any provision of any federalagreement, state instrument, order, judgment or local lawdecree, rule or regulation or of any judgmentwhich such counsel has actual knowledge, writ, decree or order binding upon to which the Company or any provision of its Subsidiaries and the Stockholders, as the case may be is a party or by which it or any of them is bound; (vi) except as may be specified by such counsel, such counsel does not know of any material suit or proceeding pending or threatened against or affecting any of the Company's amended Articles Stockholders, or By-Laws.
Subsidiaries, their or its business or properties or the consummation of the transactions contemplated hereunder; (gvii) All consents, all regulatory and governmental approvals, orders or authorizations of, consents and all qualifications, registrations, designations, declarations or filings with, required of any federal or state governmental authority on the part of the Stockholders, Company required in connection with and its Subsidiaries for the consummation of the transactions contemplated by this Agreement or any of the other Seller Documents have been obtained and are effective or made, and, to the best knowledge of such counsel, all such approvals, consents or filings remain in full effect as of the Closing, date of such opinion; and (viii) to such counsel is not aware of any proceedings, or threat thereof, which question other opinions regarding the validity thereof.
(h) Based in part upon the representations and sufficiency of the Purchaser in this Agreement, the offer legal proceedings and sale of the Series B Preferred pursuant matters relative to the terms of transactions contemplated by this Agreement are exempt from as the registration requirements Buyer may reasonably request. Buyer shall also have received the opinion of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13
(i) Except as set forth on the Schedule of Exceptions attached Special U.S. counsel to the Agreement as Exhibit B, such counsel is not aware of any action, proceeding or investigation pending against the Company or any of its officers, directors or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pendingin form and substance reasonably satisfactory to Buyer and its counsel, against to the Company or any of its officers, directors or employees' or effect that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Company.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.Aspect
Appears in 1 contract
Samples: Stock Exchange Agreement (Sylvan Learning Systems Inc)
Opinion of the Company's Counsel. The Purchaser Company shall have received from Krysdelivered to Xxxxxx, BoyleXxxxxxx & Xxxxx, Freedman & Sawyer, P.C., counsxx xx xxe Cxxxxxx, Incorporated an opinion of Xxxxxxxxxx & Xxxxx, P.A., counsel for the Company, dated the Closing Date, in form and substance satisfactory to the Purchaserclosing date, to the effect that:
(a) The Company is a corporation duly organized, organized and validly existing and in good standing under the laws of the State state of Nevadaits incorporation, and the Company has the requisite corporate power and authority to own and hold the properties owned and leased by it properties and to conduct its businesscarry on the business in which it is engaged. The Company has the corporate power and authority to enter into this Agreement, to issue and sell the Shares, Warrants and the Warrant Shares and to carry out the provisions of this Agreement.
(b) The Company This Agreement has been duly authorized, executed and delivered by the Company, and is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction the legal, valid and binding agreement of the United StatesCompany and is enforceable against the Company in accordance with its terms, subject, as to the enforcement of remedies, to limitations under applicable bankruptcy, insolvency, moratorium, reorganization, and other laws affecting the rights of creditors generally and to judicial limitations on the enforcement of the remedy of specific performance and other equitable remedies.
(c) The Company has Securities being purchased on the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock closing date have been duly authorized, validly issued and delivereddelivered by the Company, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective are entitled to the rights, privileges preferences and preferences of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any provisions of the Company's securitiesarticles of incorporation and the benefits of the provisions of this Agreement applicable thereto. The certificates evidencing the Shares and the Warrants are in valid and sufficient form.
(ed) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed All corporate proceedings required by law or by the officers provisions of this Agreement to be taken by the Board of Directors and shareholders of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms of this Agreement do not violate any provision of any federal, state on or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision of the Company's amended Articles or By-Laws.
(g) All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required prior to such closing date in connection with the execution and delivery of this Agreement, the offer, issuance and sale of the Securities and the consummation of the transactions contemplated by this Agreement Agreement, have been obtained duly and are effective as of the Closing, and such counsel is not aware of any proceedings, or threat thereof, which question the validity thereofvalidly taken.
(he) Based The Company is authorized by its articles of incorporation to issue 12,500,000 shares of capital stock, which consists of the following: (a) 11,000,000 shares of common stock, $.05 par value, of which there are outstanding 7,001,827 shares, (b) 400,000 shares of Convertible Preferred Stock, of which there are outstanding 150,000 shares, (c) 150,000 shares of Series A Convertible Preferred Stock, of which there are none outstanding, and (d) 950,000 undesignated shares. All shares outstanding immediately prior to the closing date have been duly authorized and validly issued. Except for the Common Stock, the Convertible Preferred Stock and the Series A Convertible Preferred Stock, the Company has no other authorized series or class of capital stock and, to the best of such counsel's knowledge and without any special inquiry into this matter, has no outstanding options, warrants or other rights to acquire securities of the Company, other than as disclosed in part Exhibit B.
(f) The requisite number of Warrant Shares have been validly authorized and reserved for issuance upon exercise of the Warrants, and when issued upon such exercise, will be authorized, validly issued and outstanding, fully paid and nonassessable. To the best of such counsel's knowledge, except for with regard to the outstanding shares of Stock, no security holder of the Company is entitled to preemptive or similar rights as a result of the execution or delivery of this Agreement or the issuance of the Shares, Warrants, or Warrant Shares.
(g) Assuming the accuracy of the representations made by the Investors in their Acceptances and Section 4 hereof, the offer, sale, issuance and delivery of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant Securities to the terms of Investors under the circumstances contemplated by this Agreement are exempt from the registration and prospectus delivery requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the all applicable state securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13laws.
(ih) Except for matters disclosed as set forth on the Schedule part of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware has no knowledge of any actionlitigation, proceeding or governmental investigation pending or threatened against the Company or any of its officers, directors properties or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Companybusiness.
(ji) The Company is Nothing has come to the attention of counsel which would lead counsel to reasonably believe that the Company's business and operations are not being conducted in violation of any provisions of its Articles or Bylawsall material respects in compliance with applicable laws, rules, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevadaregulations.
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser Company shall have received from Krysdelivered to First Albany Corporation, Boyle, Freedman & Sawyer, P.C., counsxx xx xxe Cxxxxxxas representative of the Investors, an opinion of Xxxxxxxxxx & Xxxxx, P.A., counsel for the Company, dated the Closing Date, in form and substance satisfactory to the Purchaserclosing date, to the effect that:
(a) The Company is a corporation duly organized, organized and validly existing and in good standing under the laws of the State state of Nevadaits incorporation, and the Company has the requisite corporate power and authority to own and hold the properties owned and leased by it properties and to conduct its businesscarry on the business in which it is engaged. The Company has the corporate power and authority to enter into this Agreement, to issue and sell the Shares, Warrants and the Warrant Shares and to carry out the provisions of this Agreement.
(b) The Company This Agreement has been duly authorized, executed and delivered by the Company, and is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction the legal, valid and binding agreement of the United StatesCompany and is enforceable against the Company in accordance with its terms, subject, as to the enforcement of remedies, to limitations under applicable bankruptcy, insolvency, moratorium, reorganization, and other laws affecting the rights of creditors generally and to judicial limitations on the enforcement of the remedy of specific performance and other equitable remedies.
(c) The Company has Securities being purchased on the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer of the Company and constitutes legal, valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock closing date have been duly authorized, validly issued and delivereddelivered by the Company, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective are entitled to the rights, privileges preferences and preferences of the Preferred Series B are as stated in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any provisions of the Company's securitiesarticles of incorporation and the benefits of the provisions of this Agreement applicable thereto. The certificates evidencing the Shares and the Warrants are in valid and sufficient form.
(ed) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed All corporate proceedings required by law or by the officers provisions of this Agreement to be taken by the Board of Directors and shareholders of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms of this Agreement do not violate any provision of any federal, state on or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision of the Company's amended Articles or By-Laws.
(g) All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required prior to such closing date in connection with the execution and delivery of this Agreement, the offer, issuance and sale of the Securities and the consummation of the transactions contemplated by this Agreement Agreement, have been obtained duly and are effective as of the Closing, and such counsel is not aware of any proceedings, or threat thereof, which question the validity thereofvalidly taken.
(he) Based The Company is authorized by its articles of incorporation to issue 30,000,000 shares of capital stock, which consists of the following: (a) 20,000,000 shares of common stock, $.05 par value, of which there are outstanding 8,284,539 shares, (b) 400,000 shares of convertible preferred stock, of which there are outstanding 150,000 shares, and (c) 9,600,000 undesignated shares. All shares outstanding immediately prior to the closing date have been duly authorized and validly issued. Except for the Common Stock, and the convertible preferred stock, the Company has no other authorized series or class of capital stock and, to the best of such counsel's knowledge and without any special inquiry into this matter, has no outstanding options, warrants or other rights to acquire securities of the Company, other than as disclosed in part Exhibit 3.14.
(f) The requisite number of Warrant Shares have been validly authorized and reserved for issuance upon exercise of the Warrants, and when issued upon such exercise, will be authorized, validly issued and outstanding, fully paid and nonassessable. To the best of such counsel's knowledge, except for with regard to the outstanding shares of Stock, no security holder of the Company is entitled to preemptive or similar rights as a result of the execution or delivery of this Agreement or the issuance of the Shares, Warrants, or Warrant Shares.
(g) Assuming the accuracy of the representations made by the Investors in their Acceptances and Section 4 hereof, the offer, sale, issuance and delivery of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant Securities to the terms of Investors under the circumstances contemplated by this Agreement are exempt from the registration and prospectus delivery requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the all applicable state securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13laws.
(ih) Except for matters disclosed as set forth on the Schedule part of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware has no knowledge of any actionlitigation, proceeding or governmental investigation pending or threatened against the Company or any of its officers, directors properties or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Companybusiness.
(ji) The Company is Nothing has come to the attention of counsel which would lead counsel to reasonably believe that the Company's business and operations are not being conducted in violation of any provisions of its Articles or Bylawsall material respects in compliance with applicable laws, rules, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevadaregulations.
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser Xxxxxx and the Company shall -------------------------------- have received from Krys, Boyle, Freedman & Sawyer, P.C., counsxx xx xxe Cxxxxxx, delivered to Acquiror an opinion of Xxxxxx Xxxxxx, counsel to Xxxxxx and the Company, dated as of the Closing Date, in form and substance satisfactory to the PurchaserAcquiror, to the effect that:
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State its jurisdiction of Nevada, and the Company has the requisite corporate power and authority to own it properties and to conduct its business.incorporation;
(b) The Company is not presently required to be duly qualified to do business as a foreign corporation and in any state or good standing in each jurisdiction of the United States.in which such qualification is necessary;
(c) The Company has the requisite corporate power and authority to executecarry on its business as it is now being conducted and to own the properties and assets it now owns, deliver and perform the Company has the full corporate power and authority to enter into this Agreement. Agreement and to consummate the transactions contemplated hereby;
(d) The authorized capital stock of the Company consists of 100 shares of Common Stock, $1.00 par value per share, and, stating that all 100 of such shares were issued and outstanding, that such issued shares have been duly and validly authorized and issued and are fully paid and nonassessable and that such shares are owned beneficially and of record by Xxxxxx Xxxxxx, free and clear of any lien, claim, charge or encumbrance;
(e) Based upon an examination of the records of the Company, to the best of the knowledge of such counsel except as disclosed in this Agreement or pursuant hereto, there are no outstanding options, warrants or other rights to purchase or acquire any capital stock of the Company;
(f) All corporate action by the Company required in order to authorize the transactions contemplated hereby has been duly and validly authorized by the Company, taken; and this Agreement has been duly executed and delivered by an authorized officer of the Company and constitutes legalis the valid and binding obligation of Xxxxxx and the Company enforceable in accordance with its terms except that (i) such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors, rights, and (ii) 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;
(g) Xxxxxx has complete and unrestricted power to sell, convey, assign, transfer and deliver to Acquiror the Company Stock to be sold, conveyed, assigned, transferred and delivered pursuant hereto; and the instruments of sale, conveyance, assignment and transfer executed and delivered to Acquiror or Acquiror's Subsidiary hereunder are duly executed, are valid and binding obligations of Xxxxxx as contemplated by this Agreement;
(h) Neither the execution and delivery of this Agreement by Xxxxxx and the Company nor the consummation of the transactions contemplated hereby will violate the Certificate of Incorporation or By-Laws of the Company or, will violate, conflict with, or constitute a default under, or cause the acceleration of maturity of any debt or obligation pursuant to, or result in the creation or imposition of any security interest, lien or other encumbrance upon any property or assets of the Company, subject under any contract, commitment, agreement, trust, understanding, arrangement or restriction of any kind to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of which Xxxxxx or the Company is as follows:a party or by which Xxxxxx or the Company is bound or violate any statute or law, or any judgment, decree, order, regulation or rule of any court or governmental authority;
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock have been duly authorized, issued and delivered, are validly outstanding, fully paid and nonassessable, and have been approved by all requisite shareholder action. The respective rights, privileges and preferences of the Preferred Series B are as stated Company is not engaged in the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance or threatened with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges any legal action or other rights (proceeding or agreements of has incurred or been charged with or is under investigation with respect to any such rights) outstanding to purchase or otherwise obtain any of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms of this Agreement do not violate any provision violation of any federal, state or local lawlaw or administrative regulation which if adversely determined might adversely affect or impair the business or condition, rule financial or regulation or of any judgmentotherwise, writ, decree or order binding upon the Company or any provision of the Company's amended Articles or By-Laws.;
(gj) All consentsNo consent of any governmental body nor of any other person, approvals, orders or authorizations of, is required for the consummation by Xxxxxx and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required in connection with the consummation of the transactions contemplated by this Agreement hereby;
(k) To the best knowledge of such counsel, the Company is in compliance with all applicable laws and regulations;
(l) No facts have been obtained and are effective as come to the attention of the Closing, and such counsel which would lead them to believe that any representation or warranty of Xxxxxx or the Company contained herein or in the Disclosure Schedule or any supplement thereto is not aware of any proceedingsincorrect, false or threat thereof, which question the validity thereof.misleading; and
(hm) Based in part upon the representations of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant As to such other matters incident to the terms matters herein contemplated as Acquiror and its counsel may reasonably request, including the form of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, all documents and from the qualification requirements of the securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13
(i) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware of any action, proceeding or investigation pending against the Company or any of its officers, directors or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Companyall proceedings.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.
Appears in 1 contract
Samples: Stock Purchase Agreement (Enviro Clean of America Inc)
Opinion of the Company's Counsel. The Purchaser Company shall have received from Krys, Boyle, Freedman & Sawyer, P.C., counsxx xx xxe Cxxxxxx, ------------------------------------ delivered to Acquiror an opinion of [_______________], counsel to the Company, dated as of the Closing Date, in form and substance satisfactory to the PurchaserAcquiror, to the effect that:
(a) The Company and each Company Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation;
(b) Each of the State Company and the Company Subsidiaries is duly qualified as a foreign corporation and in good standing in each jurisdiction [in which the properties owned or leased by it or the nature of Nevadathe business conducted by it makes such qualification necessary];
(c) Each of the Company and the Company Subsidiaries has the corporate power and authority to carry on its business as it is now being conducted and to own the properties and assets it now owns, and the Company has the requisite full corporate power and authority to own it properties enter into this Agreement and to conduct its businessconsummate the transactions contemplated hereby;
(d) The authorized capital stock of the Company consists of 100 shares of Common Stock, ,total capital 50,000 Cordoba's all of which are issued and outstanding.
(be) The Company is not presently required to be qualified to do business as a foreign corporation in any state or jurisdiction Based upon an examination of the United States.records of the Company, [to the best of the knowledge of such counsel] [except as disclosed in this Agreement or pursuant hereto,] there are no outstanding options, warrants or other rights to purchase or acquire any capital stock of the Company;
(cf) The [Except as disclosed in this Agreement or pursuant hereto,] all the outstanding shares of capital stock of each Company has Subsidiary are validly authorized and issued, fully paid and nonassessable, and based upon an examination of the requisite records of the Company and each Company Subsidiary, [to the best of the knowledge of such counsel,] all of such shares are owned by the Company or another Company Subsidiary free and clear of all liens, claims, charges or encumbrances, of any kind, and there are no outstanding options or agreements to issue or sell any capital stock of any Company Subsidiary;
(g) All corporate power and authority action by the Company required in order to execute, deliver and perform this Agreement. The Agreement authorize the transactions contemplated hereby has been duly and validly authorized by the Company, taken; and this Agreement has been duly executed and delivered by an authorized officer the Company and is the valid and binding obligation of the Company enforceable in accordance with its terms except that (i) such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, (ii) the remedy of specific performance and constitutes legalinjunctive 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, and (iii) enforceability of Section 6.14 of this Agreement may be subject to limitations of policy under Federal and State securities laws;
(h) The Company has complete and unrestricted power to sell, convey, assign, transfer and deliver to Acquiror all of the properties and assets to be sold, conveyed, assigned, transferred and delivered pursuant hereto; and the instruments of sale, conveyance, assignment and transfer executed and delivered to Acquiror or Acquiror's Subsidiary hereunder are duly executed, are valid and binding obligations of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability effectively vest in Acquiror's Subsidiary [all of the indemnification provisions of Section 8.11 of the Agreement may be limited Company's] [good] title to such properties and assets as contemplated by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization of the Company is as follows:this Agreement;
(i) Preferred Stock. 5,000,000 shares Neither the execution and delivery of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock have been duly authorized, issued and delivered, are validly outstanding, fully paid and nonassessable, and have been approved Agreement by all requisite shareholder action. The respective rights, privileges and preferences the Company nor the consummation of the Preferred Series B are as stated in transactions contemplated hereby will violate the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, will be validly issued, fully paid and nonassessable.
(ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers Organizational Documents of the Company named thereon.or any Company Subsidiary or, will violate, conflict with, or constitute a default under, or cause the acceleration of maturity of any debt or obligation pursuant to, or result in the creation or imposition of any security interest, lien or other encumbrance upon any property or assets of the Company or any Company Subsidiary under, any contract, commitment, agreement, trust, understanding, arrangement or restriction of any kind to which the Company or any Company Subsidiary is a party or by which the Company or any Company Subsidiary is bound [other than encumbrances imposed pursuant to the Financing] or violate any statute or law, or any judgment, decree, order, regulation or rule of any court or governmental authority;
(fj) The execution, delivery, performance and compliance [To the best knowledge of such counsel,] neither the Company nor any Company Subsidiary is engaged in or threatened with the terms of this Agreement do not violate any provision legal action or other proceeding or has incurred or been charged with or is under investigation with respect to any violation of any federal, state or local lawlaw or administrative regulation which if adversely determined might[, rule in such counsel's opinion, materially] adversely affect or regulation impair the business or condition, financial or otherwise, of any judgment, writ, decree or order binding upon the Company or any provision of Company Subsidiary, except as specifically disclosed by the Company's amended Articles Company in this Agreement or By-Laws.pursuant hereto;
(gk) All consentsOther than as described herein or in the Disclosure Schedule, approvalsno consent of any governmental body nor of any other person, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on is required for the part of consummation by the Company required in connection with the consummation of the transactions contemplated by this Agreement hereby, all of which have been obtained duly and validly obtained;
(l) To the best knowledge of such counsel, the Company and each Company Subsidiary are effective as in compliance with all applicable laws and regulations;
(m) No facts have come to the attention of such counsel which would lead them to believe that any representation or warranty of the ClosingCompany contained herein or in the Disclosure Schedule or any supplement thereto is incorrect, false or misleading;
(n) Nothing has come to the attention of such counsel that would indicate that the Company has any direct or indirect interest in any corporation or business which competes with or is similar to any business conducted by Acquiror, and such counsel is does not aware know of any proceedings, or threat thereof, which question the validity thereof.
(h) Based in part upon the representations of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant to the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13
(i) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware of any action, proceeding or investigation pending against the Company or any of its officers, directors or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects interest of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Company.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.;
Appears in 1 contract
Opinion of the Company's Counsel. The Purchaser shall have received from KrysBarbxxx X. Xxxxxx, BoyleXxneral Counsel for the Company, Freedman & Sawyerher opinion, P.C., counsxx xx xxe Cxxxxxx, an opinion dated the Closing Datedate of the Closing, in form and substance reasonably satisfactory to the Purchaser, to the effect that, subject to customary exceptions:
(a) The each of the Company and its Subsidiaries is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the State state of Nevadaits incorporation, and each of the Company and its Subsidiaries has the all requisite corporate power and authority to own it properties and operate its properties, to carry on its businesses as now conducted and to conduct carry out and perform its business.obligations under the terms of this Agreement, the Warrant Agreement and the Registration Rights Agreement;
(b) The the Company is not presently required to be duly licensed or qualified to do business and is in good standing as a foreign corporation in any state or the State of California and each other jurisdiction wherein the nature of the United States.business transacted by the Company or the nature of the property owned or leased by it requires such licensing or qualification. Each of the Subsidiaries is duly licensed or otherwise qualified in each state wherein the nature of the business transacted by such Subsidiary or the nature of the property owned or leased by it requires such licensing or qualification and where failure to be so licensed or qualified would reasonably be expected to, singly or in the aggregate, have a Material Adverse Effect on the Company;
(c) The Company has the requisite corporate power and authority to execute, deliver and perform this Agreement. The Agreement has been duly and validly authorized by the Company, duly executed and delivered by an authorized officer capital stock of the Company consists of 50,000,000 shares of Common Stock and constitutes legal1,000,000 shares of preferred stock, valid and binding obligations all of the Company, subject to bankruptcy and other laws of general application affecting the rights and remedies of creditors and except insofar as the enforceability outstanding shares of the indemnification provisions of Section 8.11 of the Agreement may be limited by applicable laws and except that no opinion need be given as to the availability of equitable remedies.
(d) The capitalization capital stock of the Company is as follows:
(i) Preferred Stock. 5,000,000 shares of Stock, of which (A) 500,000 shares have been designated Series A Preferred Stock and are issued and outstanding and (B) 250,000 shares have been designated as Series B Preferred and purchased pursuant to this Agreement. Such shares of Series B Preferred Stock have been duly authorized, issued and delivered, are validly outstandingissued, fully paid and nonassessable, ; upon the issuance and have been approved by all requisite shareholder action. The respective rights, privileges and preferences sale of the Preferred Series B are as stated in Shares, the Certificate attached as Exhibit A to the Agreement. The Conversion Stock has been duly and validly reserved for issuance and, when issued in accordance with the Certificate, Shares will be validly issued, fully paid and nonassessable.
; and upon the valid exercise (ii) Common Stock. 10,000,000 shares of Common Stock, of which 3,000,000 shares have been duly authorized, issued and delivered and are validly outstanding, fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.
(iii) Except for (A) the conversion privileges including payment of the Series A Preferred Stock, (B) the conversion privileges of the Series B Preferred, (C) the rights of first refusal contained in Section 9 hereof, (D) the rights of first refusal contained in the Sanyo Agreement, (E) 250,000 shares of Common Stock reserved for issuance upon the exercise of the stock option granted in the Sanyo Agreement, (F) 500,000 shares of Common Stock reserved for issuance upon exercise of outstanding Class A Warrants, (G) 150,000 shares of Common Stock reserved for issuance upon exercise of outstanding Underwriter's Warrants and (H) 657,000 shares of Common Stock reserved for issuance to employees and consultants upon exercise of outstanding stock options, there are no preemptive rights or, to the best of counsel's knowledge, options, warrants, conversion privileges or other rights (or agreements of any such rights) outstanding to purchase or otherwise obtain any of the Company's securities.
(e) The certificates representing shares of the Preferred Stock and shares of Common Stock are in due and proper form and have been duly and validly executed by the officers of the Company named thereon.
(f) The execution, delivery, performance and compliance with the terms of this Agreement do not violate any provision of any federal, state or local law, rule or regulation or of any judgment, writ, decree or order binding upon the Company or any provision of the Company's amended Articles or By-Laws.
(g) All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations or filings with, any federal or state governmental authority on the part of the Company required in connection with the consummation of the transactions contemplated by this Agreement have been obtained and are effective as of the Closing, and such counsel is not aware of any proceedings, or threat thereof, which question the validity thereof.
(h) Based in part upon the representations of the Purchaser in this Agreement, the offer and sale of the Series B Preferred pursuant to the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act by virtue of Section 4(2) thereof, and from the qualification requirements of the securities laws of the State of Nevada, or all requisite permits, qualifications and orders have been obtained. 13
(i) Except as set forth on the Schedule of Exceptions attached to the Agreement as Exhibit B, such counsel is not aware of any action, proceeding or investigation pending against the Company or any of its officers, directors or employees, or that any of the foregoing has received any threat thereof, which questions the validity of the Agreement or the right of the Company or its officers, directors and employees to enter into such agreement or which might result, either individually or in the aggregate, in any adverse change in the assets, condition, affairs or prospects of the Company, nor is such counsel aware of any litigation pending, against the Company or any of its officers, directors or employees' or that any of the foregoing has received any threat thereof, by reason of the proposed activities of the Company, the past employment relationships of its officers, directors or employees, or negotiations by the Company or any of its officers or directors with possible investors in the Company.
(j) The Company is not in violation of any provisions of its Articles or Bylaws, and neither of such documents is in violation of any provision of the Corporation Law of the State of Nevada.exercise
Appears in 1 contract
