Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, that: (a) The Company is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed, and has the requisite power and authority to own its properties and to carry on its business as now being conducted, except as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty. (b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Exchange Agreement (Burlington Stores, Inc.), Exchange Agreement (Burlington Stores, Inc.), Exchange Agreement (Burlington Stores, Inc.)
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Dateas of each Closing, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction in which it is formedCommonwealth of Massachusetts, and has the requisite with full power and authority to own its properties and to carry on conduct its business as now it is currently being conducted, except as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, conducted and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of own its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penaltyassets.
(b) The Company has full power and authority to enter into this Agreement and perform all obligations required to be performed by the Company hereunder.
(c) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (ai) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (bii) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This .
(d) The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby (i) does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including NASDAQ, other than the filing with NASDAQ of a Listing of Additional Shares notification (the “LAS”) which the Company will so file prior to the issuance of Shares included in the Daily Exchange Consideration on each Closing Date), or court, or body or arbitrator having jurisdiction over the Company (except as may be required under the securities or Blue Sky laws of the various states); and (ii) does not and will not violate, conflict with constitute or result in a breach of breach, violation or default underunder any note, assuming bond, mortgage, deed, indenture, lien, instrument, contract, agreement, lease or license, whether written or oral, express or implied, or with the truth Company’s Articles of Organization or by-laws, or any statute, law, ordinance, decree, order, injunction, rule, directive, judgment or regulation of any court, administrative or regulatory body, governmental authority, arbitrator, mediator or similar body on the part of the Company or on the part of any other party thereto or cause the acceleration or termination of any obligation or right of the Company or any other party thereto.
(e) The Shares have been duly reserved for issuance and, when issued, delivered and paid for in the manner set forth in this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights, other than any rights that have been complied with or waived.
(f) Assuming the accuracy of the representations and warranties and compliance with the covenants of the Investor hereinset forth in this Agreement, the issuance of the Shares pursuant to this Agreement are exempt from the registration requirements of the Securities Act and the Shares will not be subject to restrictions on transfer under the Securities Act (and will not have any restrictive legends on such certificates or book-entry notations representing such Shares).
(g) (A) As of the date hereof, (x) The Company is not aware of any material non-public information regarding the Company, other than any material non-public information relating to the Exchange and (y) all reports and other documents filed by the Company with the Securities and Exchange Commission (the “SEC”) pursuant to the Securities Exchange Act of 1934, as amended, since January 1, 2016 when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, other than, any material facts with respect to information regarding the Exchange, the Information (as defined below) or any information referred to in the wall-crossing email referenced in Section 4(y) below and (B) the Company hereby agrees to publicly disclose on or before 8:30 a.m., New York City time, on the first business day after the date hereof, the exchange of the Exchanged Notes as contemplated by this Agreement in a press release; provided that (i) if the Exchange does not take place and (ii) the Company believes, in good faith, that there is no legal requirement to publicly disclose information about the Exchange, no press release will be required. The Company hereby acknowledges and agrees that this press release will disclose all confidential information to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise communicated by the Company to the Investor or any Exchanging Investor in connection with the Exchange. For the avoidance of doubt, the Company may be aware of material non-public information regarding the Company at the time of each Closing that has not been communicated to the Investor or any Exchanging Investor.
(h) The Company is responsible for paying all of its fees and expenses, the fees and expenses of its advisors, transfer agent, registrar and other representatives, if any, of the transactions contemplated by this Agreement; provided that Investor (for itself and on behalf of the Exchanging Investors) is responsible for any applicable transfer taxes.
(i) The Company will, upon request, execute and deliver any additional documents deemed by the Trustee or the transfer agent to be reasonably necessary to complete the transactions contemplated by this Agreement.
(j) The Company will, on the first business day following the final Closing, file a Current Report on Form 8-K publically disclosing the exchange of the Exchanged Notes as contemplated by this Agreement.
(k) The Company and each of its subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X promulgated under the Securities Act have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or have such power or authority would not, individually or in the aggregate, (i) have a material adverse effect on the charterbusiness, bylaws properties, financial position, stockholders’ equity, or other organizational documents results of operations of the CompanyCompany and its subsidiaries taken as a whole (a “Material Adverse Effect”), (ii) prevent or materially interfere with consummation of the transactions contemplated by this Agreement, or (iii) result in the delisting of Shares from NASDAQ.
(l) Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries are bound, is subject; or (iii) in violation of any lawslaw or statute or any judgment, regulations order, rule or regulation of any court or arbitrator or governmental or judicial decreesregulatory authority (including, injunctions or orders without limitation, the rules and regulations of the NASDAQ), in each case, applicable to the Company and its subsidiariesCompany, except except, in the case of clauses (ii) or and (iii)) above, where for any such violationsconflict, conflicts, breaches breach or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and violation that would not, individually or in the aggregate, materially impair the ability of the have a Material Adverse Effect.
(m) The Company is not and, after giving effect to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement, will not be required to register as an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the SEC thereunder.
Appears in 2 contracts
Samples: Exchange Agreement, Exchange Agreement (Immunogen Inc)
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing DateClosing, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction in which it is formedits state of incorporation, and has the requisite power and authority to own its properties and to carry on its business as now being conducted, except as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) laws of general application relating to bankruptcy, insolvencyinsolvency and the relief of debtors, fraudulent transferand rules of law governing specific performance, reorganization, moratorium injunctive relief or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equityequitable remedies. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, under (i) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiariesCompany, except in the case of for such violations, conflicts or breaches under clauses (ii) or and (iii)) above that would not, where such violationsindividually or in the aggregate, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, financial position or results of operations (including results thereof), or condition (financial or otherwise) of the Company or and its subsidiaries, subsidiaries taken as a whole, and would not, individually whole or in the aggregate, materially impair the ability on its performance of the Company to perform its obligations under this Agreement or to consummate on the consummation of the transactions contemplated by this Agreementthereby.
(c) The Shares have been duly authorized and, upon delivery against payment therefor as provided herein, will be fully paid and non-assessable; assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, the Shares will be issued without any legends that restrict the transfer of such Shares under the U.S. federal securities laws; and the Shares will not be subject to any preemptive, participation, rights of first refusal or other similar rights.
(d) At the Closing, the Shares shall have been approved for listing on the NYSE, subject to official notice of issuance.
(e) The terms of the Exchange are the result of bilateral negotiations between the parties.
Appears in 2 contracts
Samples: Exchange Agreement (Par Pacific Holdings, Inc.), Exchange Agreement (Par Pacific Holdings, Inc.)
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the The Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, thatas follows:
(a1) The Company has good title to the Collateral, subject only to Permitted Encumbrances and (2) this Security Agreement is and will remain a valid and enforceable Lien on the Collateral, except as items of Collateral are disposed of as permitted by the Financing Documents.
(B) The Company is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction in which it is formed, State of Maryland and has the requisite possesses full corporate power and authority to own its properties and to carry on its business as now being conducted, except as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and corporate capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate enter into the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Security Agreement and the consummation by other Financing Documents and to mortgage and pledge the Company of Collateral in the Exchangemanner and to the extent herein set forth, and the Security Agreement and the other Financing Documents constitute valid and enforceable obligations according to their terms except as enforceability may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
(b) This Agreement has been duly authorized, executed and delivered limited by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium reorganization or other similar laws affecting or relating to or affecting the enforcement of creditors’ ' rights generally and except as enforceability may be limited by general equitable principles.
(bC) general principles Neither the execution and delivery of equity, whether such enforceability is considered in a proceeding at law or in equity. This the Security Agreement and the other Financing Documents, the consummation of the Exchange transactions contemplated hereby and thereby nor the fulfillment of or compliance with the provisions hereof or thereof will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy any of the representations and warranties and compliance with the covenants terms, conditions or provisions of the Investor herein, (i) the charter, bylaws articles of incorporation or other organizational documents by-laws of the CompanyCompany or of any order, (ii) any judgment, law, restriction, agreement or instrument to which the Company is a party or of by which the Company or any of its assets or subsidiaries are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable it is bound except to the Company and its subsidiaries, except in extent the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults foregoing would not reasonably be expected to have a material adverse effect on upon the business, properties, assets, liabilities, operations (including results thereof), or financial condition (financial or otherwise) of the Company or (and with respect to such orders, judgments, laws, restrictions, agreements and instruments, its subsidiaries, Subsidiaries taken as a whole) or materially and adversely effect the Lien on the Collateral granted hereunder, or result in the creation or imposition of any Lien (except Permitted Encumbrances) of any nature upon any of the Property of the Company under the terms of any such instrument or agreement.
(D) The chief executive office and other places of business of the Company, the Collateral and the books and records relating to the Collateral are, and would not, individually have been during the four month period prior to the date hereof (or in the aggregatecase of a new business, materially impair from the ability date of commencement of said business), located at the address(es) set forth in Schedule 3.01 hereto and the Company will not change the same, or merge or consolidate with any person or change its name, without prior written notice to perform the Holder.
(E) In its obligations under this Agreement discretion, the Holder may at any time and from time to time, after an Event of Default has occurred and is continuing, in its name or the Company's or otherwise, notify any account debtor or obligor of any account contact, document, instrument, chattel paper or general intangible included in the Collateral to consummate make payment to the transactions contemplated Holder.
(F) In its discretion, the Holder may, at any time and from time to time, after an Event of Default has occurred and is continuing, demand, xxx for, collect or receive any money or property at any time payable or receivable on account of or in exchange for, or make any compromise or settlement deemed desirable to the Holder with respect to, any Collateral, and/or extend the time of payment, arrange for payment in installments, or otherwise modify the terms of, or release, any Collateral or obligations, all without notice to or consent by this Agreementthe Company and without otherwise discharging or affecting the obligations, the Collateral or the security interest granted herein.
Appears in 1 contract
Samples: Security Agreement (Balchem Corp)
Representations and Warranties and Covenants of the Company. As 2.1 To induce Prudential to execute and deliver this Second Amendment (which representations shall survive the execution and delivery of the date hereof and the Closing Datethis Second Amendment), the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, to Prudential that:
(a) The Company this Second Amendment has been duly authorized, executed and delivered by it and each Guarantor Subsidiary which is duly organizeda signatory hereto and this Second Amendment constitutes the legal, validly existing valid and in good standing under the laws binding obligation, contract and agreement of the jurisdiction Company enforceable against it in which it is formed, and has the requisite power and authority to own accordance with its properties and to carry on its business as now being conductedterms, except as would not reasonably enforcement may be expected limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to have or limiting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a material adverse effect on proceeding in equity or at law);
(b) the businessPrivate Shelf Facility, propertiesas amended by this Second Amendment, assetsconstitutes the legal, liabilitiesvalid and binding obligation, operations (including results thereof), or condition (financial or otherwise) contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or its subsidiaries, taken as similar laws or equitable principles relating to or limiting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order proceeding in equity or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with at law);
(c) the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
Second Amendment (bi) This Agreement has been duly authorizedauthorized by all requisite corporate action and, executed and delivered by the Company and constitutes a legalif required, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Companyshareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of laws, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which the Company it is a party or by which the Company its properties or any of its assets are or subsidiaries are may be bound, or (iiiB) result in a breach or constitute (alone or with due notice or lapse or both) a default under any lawsindenture, regulations agreement or governmental or judicial decrees, injunctions or orders applicable other instrument referred to the Company and its subsidiaries, except in the case of clauses clause (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwiseiii)(A)(3) of the Company or its subsidiaries, taken this Section 2.1(c); and
(d) as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company date hereof and after giving effect to perform its obligations under this Agreement Second Amendment, no Default or to consummate the transactions contemplated by this AgreementEvent of Default has occurred which is constituting.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Dateas of each Closing, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction in which it is formedDelaware, and has the requisite with full power and authority to own its properties and to carry on conduct its business as now it is currently being conducted, except as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, conducted and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of own its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penaltyassets.
(b) The Company has full power and authority to enter into this Agreement and perform all obligations required to be performed by the Company hereunder.
(c) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (ai) bankruptcy, fraudulent conveyance, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (bii) general principles of equity, equity (regardless of whether such enforceability is considered in a proceeding equity or at law or in equity. This law).
(d) The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby (i) does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including NASDAQ, other than the filing with NASDAQ of a Listing of Additional Shares notification (the “LAS”) which the Company will so file prior to the issuance of Shares included in the Daily Exchange Consideration on each Closing Date), or court, or body or arbitrator having jurisdiction over the Company (except as may be required under the securities or Blue Sky laws of the various states); and (ii) does not and will not violate, conflict with constitute or result in a breach of breach, violation or default underunder any note, assuming bond, mortgage, deed, indenture, lien, instrument, contract, agreement, lease or license, whether written or oral, express or implied, or with the truth Company’s Certificate of Incorporation or by-laws, or any statute, law, ordinance, decree, order, injunction, rule, directive, judgment or regulation of any court, administrative or regulatory body, governmental authority, arbitrator, mediator or similar body on the part of the Company or on the part of any other party thereto or cause the acceleration or termination of any obligation or right of the Company or any other party thereto.
(e) The Shares have been duly reserved for issuance and, when issued, delivered and paid for in the manner set forth in this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights, other than any rights that have been complied with or waived.
(f) Assuming the accuracy of the representations and warranties and compliance with the covenants of the Investor hereinset forth in this Agreement, the issuance of the Shares pursuant to this Agreement are exempt from the registration requirements of the Securities Act and the Shares will not be subject to restrictions on transfer under the Securities Act (and will not have any restrictive legends on such certificates or book-entry notations representing such Shares).
(g) (A) As of the date hereof, (x) the Company is not aware of any material non-public information regarding the Company, other than any material non-public information relating to the Exchange and (y) all reports and other documents filed by the Company with the Securities and Exchange Commission (the “SEC”) pursuant to the Securities Exchange Act of 1934, as amended, since January 1, 2017 when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, other than, any material facts with respect to information regarding the Exchange, the Information (as defined below) or any information referred to in the wall-crossing email referenced in Section 4(y) below and (B) the Company hereby agrees to publicly disclose on or before 8:30 a.m., New York City time, on the first business day after the date hereof, the exchange of the Exchanged Notes as contemplated by this Agreement in a press release; provided that (i) if the Exchange does not take place and (ii) the Company believes, in good faith, that there is no legal requirement to publicly disclose information about the Exchange, no press release will be required. The Company hereby acknowledges and agrees that this press release will disclose all confidential information to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise communicated by the Company to the Investor or any Exchanging Investor in connection with the Exchange. For the avoidance of doubt, the Company may be aware of material non-public information regarding the Company at the time of each Closing that has not been communicated to the Investor or any Exchanging Investor.
(h) The Company is responsible for paying all of its fees and expenses, the fees and expenses of its advisors, transfer agent, registrar and other representatives, if any, of the transactions contemplated by this Agreement; provided that Investor (for itself and on behalf of the Exchanging Investors) is responsible for any applicable transfer taxes.
(i) The Company will, upon request, execute and deliver any additional documents deemed by the Trustee or the transfer agent to be reasonably necessary to complete the transactions contemplated by this Agreement.
(j) The Company will, on the first business day following the final Closing, file a Current Report on Form 8-K publically disclosing the exchange of the Exchanged Notes as contemplated by this Agreement.
(k) The Company and each of its subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X promulgated under the Securities Act have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or have such power or authority would not, individually or in the aggregate, (i) have a material adverse effect on the charterbusiness, bylaws properties, financial position, stockholders’ equity, or other organizational documents results of operations of the CompanyCompany and its subsidiaries taken as a whole (a “Material Adverse Effect”), (ii) prevent or materially interfere with consummation of the transactions contemplated by this Agreement, or (iii) result in the delisting of Shares from NASDAQ.
(l) Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries are bound, is subject; or (iii) in violation of any lawslaw or statute or any judgment, regulations order, rule or regulation of any court or arbitrator or governmental or judicial decreesregulatory authority (including, injunctions or orders without limitation, the rules and regulations of the NASDAQ), in each case, applicable to the Company and its subsidiariesCompany, except except, in the case of clauses (ii) or and (iii)) above, where for any such violationsconflict, conflicts, breaches breach or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and violation that would not, individually or in the aggregate, materially impair the ability of the have a Material Adverse Effect.
(m) The Company is not and, after giving effect to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement, will not be required to register as an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the SEC thereunder.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is and each of its subsidiaries are entities duly organized, validly existing and in good standing under the laws of the jurisdiction in which it each is formed, and has have the requisite power and authority to own its their properties and to carry on its their business as now being conducted, except in the case of the Company’s subsidiaries as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or financial condition of the Company or its subsidiaries, taken as a whole. The Company and each of its subsidiaries is duly qualified as a foreign entity to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. .
(c) This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, under (i) the charter, charter or bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and each Exchanging Investor herein, any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(d) When issued, delivered and paid for in the manner set forth in this Agreement, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 3(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements to which the Company is a party, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights under the General Corporation Law of the State of Delaware or any to which the Company is a party (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to 4(a)(2) of the Securities Act and (b) when issued will be free of any restrictive legend and any restrictions on transfer under Rule 144 promulgated under the Securities Act.
(e) The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including Nasdaq, other than the filing with Nasdaq of a Listing of Additional Shares notification which the Company will so file prior to the issuance of Shares on the Closing Date), except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(f) From January 1, 2022 to the date of this Agreement, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents.
(g) Without the prior written consent of the Investor, the Company shall not disclose the name of the Investor or any Exchanging Investor in any filing or announcement, unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel.
(h) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to impede the consummation of the Exchange.
(i) The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Trustee or transfer agent to be reasonably necessary to complete the Exchange.
(j) The Company hereby agrees to publicly disclose on or before 8:30 a.m., New York City time, on the first Business Day after the date hereof, the exchange of the Exchanged Notes as contemplated by this Agreement in a press release or a Current Report on Form 8-K. The Company hereby acknowledges and agrees that any such press release or Current Report on Form 8-K will disclose all confidential information communicated by the Company to the Investor or any Exchanging Investor in connection with the Exchange to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As 2.1 To induce Prudential to execute and deliver this Seventh Amendment (which representations shall survive the execution and delivery of the date hereof and the Closing Datethis Seventh Amendment), the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, to Prudential that:
(a) The Company is this Seventh Amendment has been duly organizedauthorized, validly existing executed and in good standing under delivered by it and this Seventh Amendment constitutes the laws legal, valid and binding obligation, contract and agreement of the jurisdiction Company, enforceable against it in which it is formed, and has the requisite power and authority to own accordance with its properties and to carry on its business as now being conductedterms, except as would not reasonably enforcement may be expected limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to have or limiting creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a material adverse effect on proceeding in equity or at law);
(b) the businessNote Agreement, propertiesas amended by this Seventh Amendment, assetsconstitutes the legal, liabilitiesvalid and binding obligation, operations (including results thereof), or condition (financial or otherwise) contract and agreement of the Company Company, enforceable against it in accordance with its terms, except as enforcement may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or its subsidiaries, taken as a whole. The Company has the power, authority and capacity similar laws or equitable principles relating to execute and deliver this Agreement, to perform its obligations hereunderor limiting creditors’ rights generally, and to consummate the Exchange contemplated hereby. No consent, approval, order (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with at law);
(c) the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
Seventh Amendment (bi) This Agreement has been duly authorizedauthorized by all requisite corporate action and, executed and delivered by the Company and constitutes a legalif required, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Companyshareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which the Company it is a party or by which the Company its properties or any of its assets are or subsidiaries are may be bound, or (iiiB) result in a breach or constitute (alone or with due notice or lapse or both) a default under any lawsindenture, regulations agreement or governmental or judicial decrees, injunctions or orders applicable other instrument referred to the Company and its subsidiaries, except in the case of clauses clause (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwiseiii)(A)(3) of the Company or its subsidiaries, taken this Section 2.1(c); and
(d) as a whole, and would not, individually or in the aggregate, materially impair the ability of the date hereof and after giving effect to this Seventh Amendment, no Default or Event of Default has occurred which is continuing.
2.2 The Company to perform its obligations under agrees that it shall promptly pay the reasonable fees and expenses of Xxxxxxx XxXxxxxxx LLP in connection with the negotiation, preparation, approval, execution and delivery of this Agreement or to consummate the transactions contemplated by this AgreementSeventh Amendment.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, Investors that (and all such covenants, representations and warranties shall survive the Closing, that:):
(a) The Company is and each of its subsidiaries have been duly organized, organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization (to the extent such concepts or analog concepts are applicable under such laws of any non-U.S. jurisdiction where any subsidiary of the Company is organized), are duly qualified to do business and are in good standing in each jurisdiction in which it is formedtheir respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and has the requisite have all power and authority necessary to own its or hold their respective properties and to carry on its business as now being conductedconduct the businesses in which they are engaged, except as where the failure to be so qualified or in good standing or have such power or authority would not not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, properties, assetsmanagement, liabilitiesfinancial position, stockholders’ equity, results of operations (including results thereof), or condition (financial or otherwise) prospects of the Company or and its subsidiaries, subsidiaries taken as a wholewhole or on the performance by the Company of its obligations under this Agreement (a “Material Adverse Effect”). The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any applicable state or federal securities laws or that may be made or obtained after the Closing without penalty.. 1 Include in lieu of preceding bracketed clause as applicable
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, except that such enforcement as enforceability may be subject to (a) limited by applicable bankruptcy, insolvency, fraudulent transferconveyance, reorganizationre-organization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general or by equitable principles relating to enforceability, including principles of equity, commercial reasonableness, good faith and fair dealing (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity. ) (collectively, the “Enforceability Exceptions”).
(c) This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, under (i) the charter, charter or bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and each Exchanging Investor herein, any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, materially and adversely affect the financial position, results of operations or prospects of the Company and its subsidiaries taken as a whole, or materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(d) When issued, delivered and paid for in the manner set forth in this Agreement, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 3(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements to which the Company is a party, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights under the General Corporation Law of the State of Delaware or any agreement to which the Company is a party (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to 4(a)(2) of the Securities Act, [(b) will be issued in CUSIP No. 00000X000, and (c) will be issued in compliance with all applicable securities laws, and at the Closing, be free of any restrictive legend and any restrictions on transfer under Rule 144 promulgated under the Securities Act] [and (b) will be issued in certificated form containing the restrictive legend as set forth in Section 3(z)]2.
(e) The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including Nasdaq, other than the filing with Nasdaq of a Listing of Additional Shares Notification Form, which the Company will so file prior to the issuance of Shares on the Closing Date to the extent required), except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(f) From January 1, 202[1] to the date of this Agreement, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements of Regulations S-X and have been prepared in accordance with generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
(g) Without the prior written consent of the Investor (unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel), the Company shall not disclose (i) the name of the Investor or any Exchanging Investor in any filing or announcement or (ii) any information regarding the Investor’s holdings of securities of the Company or transactions in any securities of the Company at one of its prime brokers to any of the Investor’s other prime brokers or to any other person (other than the Company’s counsel, agents or representatives).
(h) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to impede the consummation of the Exchange. 2 Include in lieu of preceding bracketed clause for an Exchanging Investor receiving legended Shares.
(i) The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Trustee to be reasonably necessary to complete the Exchange.
(j) The Company hereby agrees to publicly disclose on or before 8:30 a.m., New York City time, on the first Business Day after the date hereof (the “Disclosure Time”), the exchange of the Exchanged Notes as contemplated by this Agreement in a press release or a Current Report on Form 8-K. The Company hereby acknowledges and agrees that any such press release or Current Report on Form 8-K will disclose all confidential information communicated by the Company to the Investor or any Exchanging Investor in connection with the Exchange to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise. The Company agrees that any confidentiality or other obligations undertaken by the Investor under the wall cross email between the Investor and the Placement Agent (defined below) or any other agreement between the Company (and/or any of its representatives) and the Investor shall terminate at the Disclosure Time or when the Company issues the press release or Current Report on Form 8-K referenced above (whichever is earlier).
(k) The Company understands that the Investor and each Exchanging Investor and others will rely upon the truth and accuracy of the foregoing representations, warranties and covenants and agrees that if any of the representations and warranties deemed to have been made by it are no longer accurate, the Company shall promptly notify the Investor and each Exchanging Investor prior to the Closing. The Company understands that, unless the Company notifies the Investor and each Exchanging Investor in writing to the contrary before the Closing, each of the Company’s representations and warranties contained in this Agreement will be deemed to have been reaffirmed and confirmed as of the Closing.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As 2.1 To induce Prudential to execute and deliver this Fifth Amendment (which representations shall survive the execution and delivery of the date hereof and the Closing Datethis Fifth Amendment), the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, to Prudential that:
(a) The Company is this Fifth Amendment has been duly organizedauthorized, validly existing executed and in good standing under delivered by it and this Fifth Amendment constitutes the laws legal, valid and binding obligation, contract and agreement of the jurisdiction Company, enforceable against it in which it is formed, and has the requisite power and authority to own accordance with its properties and to carry on its business as now being conductedterms, except as would not reasonably enforcement may be expected limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to have or limiting creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a material adverse effect on proceeding in equity or at law);
(b) the businessNote Agreement, propertiesas amended by this Fifth Amendment, assetsconstitutes the legal, liabilitiesvalid and binding obligation, operations (including results thereof), or condition (financial or otherwise) contract and agreement of the Company Company, enforceable against it in accordance with its terms, except as enforcement may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or its subsidiaries, taken as a whole. The Company has the power, authority and capacity similar laws or equitable principles relating to execute and deliver this Agreement, to perform its obligations hereunderor limiting creditors’ rights generally, and to consummate the Exchange contemplated hereby. No consent, approval, order (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with at law);
(c) the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
Fifth Amendment (bi) This Agreement has been duly authorizedauthorized by all requisite corporate action and, executed and delivered by the Company and constitutes a legalif required, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Companyshareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which the Company it is a party or by which the Company its properties or any of its assets are or subsidiaries are may be bound, or (iiiB) result in a breach or constitute (alone or with due notice or lapse or both) a default under any lawsindenture, regulations agreement or governmental or judicial decrees, injunctions or orders applicable other instrument referred to the Company and its subsidiaries, except in the case of clauses clause (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwiseiii)(A)(3) of the Company or its subsidiaries, taken this Section 2.1(c); and
(d) as a whole, and would not, individually or in the aggregate, materially impair the ability of the date hereof and after giving effect to this Fifth Amendment, no Default or Event of Default has occurred which is continuing.
2.2 The Company to perform its obligations under agrees that it shall promptly pay the reasonable fees and expenses of Xxxxxxx XxXxxxxxx LLP in connection with the negotiation, preparation, approval, execution and delivery of this Agreement or to consummate the transactions contemplated by this AgreementFifth Amendment.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, Investors that (and all such covenants, representations and warranties shall survive the Closing, that:):
(a) The Company is and each of its subsidiaries have been duly organized, organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization (to the extent such concepts are applicable under such laws of such jurisdiction), are duly qualified to do business and are in good standing in each jurisdiction in which it is formedtheir respective ownership or lease of property or the conduct of their respective businesses requires such qualification (to the extent such concepts are applicable under such laws of such jurisdiction), and has the requisite have all power and authority necessary to own its or hold their respective properties and to carry on its business as now being conductedconduct the businesses in which they are engaged, except as where the failure to be so qualified or in good standing (to the extent such concepts are applicable under such laws of such jurisdiction) or have such power or authority would not not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, properties, assetsmanagement, liabilities, financial position or results of operations (including results thereof), or condition (financial or otherwise) of the Company or and its subsidiaries, subsidiaries taken as a wholewhole or on the performance by the Company of its obligations under this Agreement (a “Material Adverse Effect”). The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any applicable state or federal securities laws or that may be made or obtained after the Closing without penalty.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, except that such enforcement as enforceability may be subject to (a) limited by applicable bankruptcy, insolvency, fraudulent transferconveyance, reorganizationre-organization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general or by equitable principles relating to enforceability, including principles of equity, commercial reasonableness, good faith and fair dealing (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity. ) (collectively, the “Enforceability Exceptions”).
(c) This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, under (i) the charter, charter or bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of each Exchanging Investor herein, any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(d) When issued, delivered and paid for in the manner set forth in this Agreement, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 3(c) below), and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights under the General Corporation Law of the State of Delaware or any agreement to which the Company is a party (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to Section 4(a)(2) of the Securities Act, (b) will be issued in CUSIP No. 29664W 105, (c) will be issued in compliance with all applicable securities laws, and at the Closing, be free of any restrictive legend and, except to the extent “current public information” (as defined in Rule 144, “Current Public Information”) with respect to the Company is not available prior to November 18, 2021, any restrictions on transfer under Rule 144 promulgated under the Securities Act (“Rule 144”).
(e) The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including Nasdaq, other than the filing with Nasdaq of a Listing of Additional Shares Notification Form, which the Company will so file prior to the issuance of Shares on the Closing Date to the extent required), except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(f) From January 1, 2021 to the date of this Agreement, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements of Regulations S-X and have been prepared in accordance with generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
(g) Without the prior written consent of each Exchanging Investor (unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel), the Company shall not disclose (i) the name of any Exchanging Investor in any filing or announcement or (ii) any information regarding an Exchanging Investor’s holdings of securities of the Company or transactions in any securities of the Company at one of its prime brokers to any of such Exchanging Investor’s other prime brokers or to any other person (other than the Company’s counsel, agents or representatives).
(h) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to impede the consummation of the Exchange.
(i) The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Trustee to be reasonably necessary to complete the Exchange.
(j) The Company hereby agrees to publicly disclose on or before 8:30 a.m., New York City time, on the first Business Day after the date hereof (the “Disclosure Time”), the exchange of the Exchanged Notes as contemplated by this Agreement in a press release or a Current Report on Form 8-K. The Company hereby acknowledges and agrees that any such press release or Current Report on Form 8-K will disclose all confidential information communicated by the Company to any Exchanging Investor or their respective affiliates or management company in connection with the Exchange to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise. The Company agrees that any confidentiality or other obligations undertaken by any Exchanging Investor or any of their respective affiliates or management company under the wall cross email between any Exchanging Investor or any of their respective affiliates or management company and the Placement Agent (defined below) or any other agreement between the Company (and/or any of its representatives) and any Exchanging Investor or any of their respective affiliates or management company under shall terminate at the Disclosure Time or when the Company issues the press release or Current Report on Form 8-K referenced above (whichever is earlier).
(k) The Company understands that each Exchanging Investor and others will rely upon the truth and accuracy of the foregoing representations, warranties and covenants and agrees that if any of the representations and warranties deemed to have been made by it are no longer accurate, the Company shall promptly notify each Exchanging Investor prior to the Closing. The Company understands that, unless the Company notifies each Exchanging Investor in writing to the contrary before the Closing, each of the Company’s representations and warranties contained in this Agreement will be deemed to have been reaffirmed and confirmed as of the Closing.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is duly organized, validly existing and in good standing under the laws of the its jurisdiction in which it is formedof incorporation, and has the requisite power and authority to own its or lease their properties and to carry on its their business as now being conducted. The Company is duly qualified as a foreign entity to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership or lease of property or the nature of the business conducted by it makes such qualification necessary, except as to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations, prospects, financial position or results of operations (including results thereof), or condition (financial or otherwise) of the Company or and its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, hereunder and to consummate the Exchange contemplated hereby.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (A) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (B) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity (the “Enforceability Exceptions”).
(c) This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under (i) the charter, bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets are bound, or (iii) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and each Exchanging Investor herein, any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults as would not, individually or in the aggregate, materially impair the ability of the Company to consummate the transactions contemplated by this Agreement. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except penalty or such that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, reasonably be expected to materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(d) When issued, delivered and paid for in the manner set forth in this Agreement, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 3(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements to which the Company is a party, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights under the Chapter 78 of the Nevada Revised Statutes of the State of Nevada or any to which the Company is a party (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (A) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to Section 4(a)(2) of the Securities Act and (B) when issued will be free of any restrictive legend and will be eligible for resale under Rule 144 promulgated under the Securities Act, so long as the Company satisfies the reporting conditions set forth in Rule 144(c) and Rule 144(i)(2) under the Securities Act. For the purposes of Rule 144 promulgated under the Securities Act, the Company acknowledges that, assuming the accuracy of each Exchanging Investor’s representations and warranties hereunder, the holding period of the Shares may be tacked onto the holding period of the Exchanged Notes and the Company agrees not to take a position contrary thereto.
(e) As of the Closing, the Company shall have filed a Notice of a Listing of Additional Shares form with Nasdaq, to the extent required by Nasdaq.
(f) Since such date that is twelve months prior to the date of this Agreement, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents. The Company is in compliance with the requirements of Rule 144(c) and Rule 144(i)(2) under the Securities Act.
(g) Without the prior written consent of the Investor, the Company shall not disclose the name of the Investor or any Exchanging Investor in any filing or announcement, unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel.
(h) The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Trustee or transfer agent to be reasonably necessary to complete the Exchange.
(i) The Company hereby agrees to publicly disclose on or before 9:00 a.m., New York City time, on the first Business Day after the date hereof, the exchange of the Exchanged Notes as contemplated by this Agreement in a press release. The Company hereby acknowledges and agrees that any press release or Current Report on Form 8-K will disclose all confidential information communicated by the Company to the Investor or any Exchanging Investor in connection with the Exchange to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise.
(j) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to impede the consummation of the transaction contemplated hereby.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the (1) The Company represents and warrants toas follows to each of the Agents, and covenants with, acknowledges that each of the Exchanging Investors, and all Agents is relying upon such covenants, representations and warranties shall survive in connection with its execution and delivery of this Agreement and the Closing, thatcompletion of the Offering:
(a) The each of the Company is duly organizedand its Subsidiaries is, and will be at the Closing Date, validly existing and in good standing subsisting under the laws of the jurisdiction in which it is formedits governing jurisdiction, and has and will at the Closing Date have all requisite corporate power and authority to own own, lease and operate its properties and to carry on assets and conduct its business as now being currently conducted, except as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of ; the Company or its subsidiaries, taken as a whole. The Company has and will have at the power, Closing Date all requisite corporate power and authority to enter into this Agreement and capacity to execute and deliver this Agreement, to perform carry out its obligations hereunder, and to consummate issue, sell and deliver the Exchange contemplated hereby. No consentOffered Securities and the Compensation Option Securities, approval, order or authorization of, or registration, declaration or filing in accordance with any governmental entity is required on the part provisions of this Agreement; each of the Company or any and its Subsidiaries is current with all material filings required to be made under the laws of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement Canada and the consummation by the Company Province of the ExchangeQuébec and all other jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except as may be required under where the absence of such power and authority or failure to make any state filing or federal securities laws obtain any license, lease, permit, authorization or that may be obtained after other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the Closing without penalty.failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect;
(b) This except as contemplated by this Agreement, the Prospectus, the PMP Agreement has been duly authorizedand the supplement no.1 to the Final Base Shelf Prospectus, executed and delivered by the Company and constitutes a legalthere are no agreements, valid and binding obligation options, warrants, rights of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium conversion or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Company, (ii) any agreement or instrument pursuant to which the Company is a party is, or by which the Company may become obligated to issue or transfer any securities (including debt securities) or any securities convertible or exchangeable, directly or indirectly, into any of its assets or subsidiaries are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.securities;
Appears in 1 contract
Samples: Agency Agreement
Representations and Warranties and Covenants of the Company. As of the date hereof and as of the Closing DateClosing, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction in which it is formedDelaware, and has the requisite with full power and authority to own its properties and to carry on conduct its business as now it is currently being conducted, except as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, conducted and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of own its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penaltyassets.
(b) The Company has full power and authority to enter into this Agreement and perform all obligations required to be performed by the Company hereunder.
(c) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (ai) bankruptcy, fraudulent conveyance, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (bii) general principles of equity, equity (regardless of whether such enforceability is considered in a proceeding equity or at law or in equity. This law).
(d) The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby (i) does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including NASDAQ, other than the filing with NASDAQ of a Listing of Additional Shares notification (the “LAS”) which the Company will so file prior to the issuance of Shares included in the Exchange Consideration on the Closing Date), or court, or body or arbitrator having jurisdiction over the Company (except as may be required under the securities or Blue Sky laws of the various states); and (ii) does not and will not violate, conflict with constitute or result in a breach of breach, violation or default underunder any note, assuming bond, mortgage, deed, indenture, lien, instrument, contract, agreement, lease or license, whether written or oral, express or implied, or with the truth Company’s Certificate of Incorporation or by-laws, or any statute, law, ordinance, decree, order, injunction, rule, directive, judgment or regulation of any court, administrative or regulatory body, governmental authority, arbitrator, mediator or similar body on the part of the Company or on the part of any other party thereto or cause the acceleration or termination of any obligation or right of the Company or any other party thereto.
(e) The Shares have been duly reserved for issuance and, when issued, delivered and paid for in the manner set forth in this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights, other than any rights that have been complied with or waived.
(f) Assuming the accuracy of the representations and warranties and compliance with the covenants of the Investor hereinset forth in this Agreement, the issuance of the Shares pursuant to this Agreement are exempt from the registration requirements of the Securities Act and the Shares will not be subject to restrictions on transfer under the Securities Act (and will not have any restrictive legends on such certificates or book-entry notations representing such Shares).
(g) (A) As of the date hereof, (x) the Company is not aware of any material non-public information regarding the Company, other than any material non-public information relating to the Exchange and (y) all reports and other documents filed by the Company with the Securities and Exchange Commission (the “SEC”) pursuant to the Securities Exchange Act of 1934, as amended, since January 1, 2017 when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, other than, any material facts with respect to information regarding the Exchange, the Information (as defined below) or any information referred to in the wall-crossing email referenced in Section 4(y) below and (B) the Company hereby agrees to publicly disclose on or before 8:30 a.m., New York City time, on the first business day after the date hereof, the exchange of the Exchanged Notes as contemplated by this Agreement in a press release; provided that (i) if the Exchange does not take place and (ii) the Company believes, in good faith, that there is no legal requirement to publicly disclose information about the Exchange, no press release will be required. The Company hereby acknowledges and agrees that this press release will disclose all confidential information to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise communicated by the Company to the Investor or any Exchanging Investor in connection with the Exchange. For the avoidance of doubt, the Company may be aware of material non-public information regarding the Company at the time of the Closing that has not been communicated to the Investor or any Exchanging Investor.
(h) The Company is responsible for paying all of its fees and expenses, the fees and expenses of its advisors, transfer agent, registrar and other representatives, if any, of the transactions contemplated by this Agreement; provided that Investor (for itself and on behalf of the Exchanging Investors) is responsible for any applicable transfer taxes.
(i) The Company will, upon request, execute and deliver any additional documents deemed by the Trustee or the transfer agent to be reasonably necessary to complete the transactions contemplated by this Agreement.
(j) The Company will, on the first business day following the Closing, file a Current Report on Form 8-K publically disclosing the exchange of the Exchanged Notes as contemplated by this Agreement.
(k) The Company and each of its subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X promulgated under the Securities Act have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or have such power or authority would not, individually or in the aggregate, (i) have a material adverse effect on the charterbusiness, bylaws properties, financial position, stockholders’ equity, or other organizational documents results of operations of the CompanyCompany and its subsidiaries taken as a whole (a “Material Adverse Effect”), (ii) prevent or materially interfere with consummation of the transactions contemplated by this Agreement, or (iii) result in the delisting of Shares from NASDAQ.
(l) Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries are bound, is subject; or (iii) in violation of any lawslaw or statute or any judgment, regulations order, rule or regulation of any court or arbitrator or governmental or judicial decreesregulatory authority (including, injunctions or orders without limitation, the rules and regulations of the NASDAQ), in each case, applicable to the Company and its subsidiariesCompany, except except, in the case of clauses (ii) or and (iii)) above, where for any such violationsconflict, conflicts, breaches breach or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and violation that would not, individually or in the aggregate, materially impair the ability of the have a Material Adverse Effect.
(m) The Company is not and, after giving effect to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement, will not be required to register as an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the SEC thereunder.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is and each of its subsidiaries are entities duly organized, validly existing and in good standing under the laws of the jurisdiction in which it each is formed, and has have the requisite power and authority to own its their properties and to carry on its their business as now being conducted, except in the case of the Company’s subsidiaries as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or financial condition of the Company or its subsidiaries, taken as a whole. The Company and each of its subsidiaries is duly qualified as a foreign entity to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. .
(c) This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, under (i) the charter, charter or bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and each Exchanging Investor herein, any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(d) When issued, delivered and paid for in the manner set forth in this Agreement, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 3(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements to which the Company is a party, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights under the General Corporation Law of the State of Delaware or any to which the Company is a party (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to 4(a)(2) of the Securities Act and (b) when issued will be free of any restrictive legend and will not be subject to restrictions on transfer under Rule 144 promulgated under the Securities Act.
(e) The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including Nasdaq, other than the filing with Nasdaq of a Listing of Additional Shares notification which the Company will so file prior to the issuance of Shares on the Closing Date), except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(f) From January 1, 2020 to the date of this Agreement, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents.
(g) Without the prior written consent of the Investor, the Company shall not disclose the name of the Investor or any Exchanging Investor in any filing or announcement, unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel.
(h) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to impede the consummation of the Exchange.
(i) The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Trustee or transfer agent to be reasonably necessary to complete the Exchange.
(j) The Company hereby agrees to publicly disclose on or before 8:30 a.m., New York City time, on the first Business Day after the date hereof, the exchange of the Exchanged Notes as contemplated by this Agreement in a press release. The Company hereby acknowledges and agrees that any press release or Current Report on Form 8-K will disclose all confidential information communicated by the Company to the Investor or any Exchanging Investor in connection with the Exchange to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is and each of its subsidiaries are entities duly organized, validly existing and in good standing under the laws of the jurisdiction in which it each is formed, and has have the requisite power and authority to own its their properties and to carry on its their business as now being conducted, except in the case of the Company’s subsidiaries as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or financial condition of the Company or its subsidiaries, taken as a whole. The Company and each of its subsidiaries is duly qualified as a foreign entity to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. .
(c) This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, under (i) the charter, charter or bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and each Exchanging Investor herein, any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(d) When issued, delivered and paid for in the manner set forth in this Agreement, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 3(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements to which the Company is a party, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights under the General Corporation Law of the State of Delaware or any to which the Company is a party (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to 4(a)(2) of the Securities Act and (b) when issued will be free of any restrictive legend and any restrictions on transfer under Rule 144 promulgated under the Securities Act.
(e) The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including Nasdaq, other than the filing with Nasdaq of a Listing of Additional Shares notification which the Company will so file prior to the issuance of Shares on the Closing Date), except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(f) From January 1, 2022 to the date of this Agreement, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents.
(g) Without the prior written consent of the Investor, the Company shall not disclose the name of the Investor or any Exchanging Investor in any filing or announcement, unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel.
(h) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to impede the consummation of the Exchange.
(i) The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Trustee or transfer agent to be reasonably necessary to complete the Exchange.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed, and has the requisite power and authority to own its properties and to carry on its business as now being conducted, except as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, results of operations (including results thereof), or financial condition (financial or otherwise) of the Company or its subsidiaries, taken as a wholewhole (a “Company Material Adverse Effect”). The Company is duly qualified to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Company Material Adverse Effect. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity or non-governmental authorities (including NASDAQ-GM, other than the filing with NASDAQ-GM of a Listing of Additional Shares Notification Form, which the Company will so file prior to the issuance of the Shares at Closing to the extent required) is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penaltypenalty to the Investor or as would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement. The execution, delivery and performance of this Agreement and each other instrument or document executed and delivered by the Company in connection with this Agreement and the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equityequity (the “Enforceability Exceptions”). This Agreement, the execution, delivery and performance of this Agreement and the consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a wholeMaterial Adverse Effect, and would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(c) When delivered to the applicable Exchanging Investor pursuant to the Exchange in accordance with the terms of this Agreement, the Shares, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, will be validly issued, fully paid and non-assessable and free and clear of any Liens (as defined in Section 2(c) below). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties and compliance with the covenants of the Investor herein, the Shares (a) will be issued in the Exchange exempt from the registration requirements of the Securities Act pursuant to Section 4(a)(2) of the Securities Act and (b) will be issued in compliance with all applicable state and federal laws and, at the Closing, be free of any restrictive legend and any restrictions on resale by such Exchanging Investor subject to the applicable conditions set forth in and pursuant to Rule 144 promulgated under the Securities Act.
(d) At the Closing, the Shares shall have been approved for listing on the NASDAQ-GM, subject only to official notice of issuance.
(e) At or prior to 8:30 a.m., New York City time, on the first business day after the date hereof, the Company shall file with the Commission a current report on Form 8-K announcing the Exchange, which current report the Company acknowledges and agrees will disclose all confidential information (as described in the Wall Cross Email) to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or was otherwise communicated by the Company to the Investor in connection with the Exchange.
(f) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened against the Company that would reasonably be expected to materially impede the consummation of the Exchange.
(g) The Covered SEC Filings (as defined below), taken as a whole, do not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Covered SEC Filings, were timely filed, and when they were filed with the SEC, complied as to form in all material respects with the applicable requirements under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). As used herein, “Covered SEC Filings” means each of the following documents, in the form they have been filed with the SEC and including any amendments thereto filed with the SEC: (w) the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022; (x) the Company’s Quarterly Reports on Form 10-Q for each of the quarters ended March 31, 2023, June 30, 2023 and September 30, 2023, and (y) the Company’s Current Reports on Form 8-K (excluding any Current Reports or portions thereof that are furnished, and not filed, pursuant to Item 2.02 or Item 7.01 of Form 8-K, and any related exhibits) and any other reports filed by the Company pursuant to Section 13(a), Section 14 or Section 15(d) of the Exchange Act, in each case, filed with the SEC after December 31, 2022 and prior to the Closing.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the each Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is and each of its subsidiaries are entities duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed, their respective jurisdictions of incorporation and has have the requisite power and authority to own its their properties and to carry on its their business as now being conducted, except in the case of the Company’s subsidiaries as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or financial condition (financial or otherwise) of the Company or and its subsidiaries, taken as a wholewhole (a “Material Adverse Effect”). The Company and each of its subsidiaries is duly qualified as a foreign entity to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. The Company has the power, power and authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (A) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (B) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity (the “Enforceability Exceptions”).
(c) This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under (i) the charter or bylaws of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets are bound, or (iii) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and each Exchanging Investor herein, any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults as would not, individually or in the aggregate, materially impair the ability of the Company to consummate the transactions contemplated by this Agreement. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity or non-governmental regulatory authorities (including The NYSE American, other than the filing with The New York Stock Exchange of a supplemental listing application of the Shares, which the Company will so file) is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be made or obtained after the applicable Closing without penalty.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except penalty or such that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, reasonably be expected to materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(d) When issued, delivered and paid for in the manner set forth in this Agreement, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 3(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements to which the Company is a party, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights under the General Corporation Law of the State of Delaware or any agreements to which the Company is a party (other than any such rights that will be waived prior to the applicable Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (A) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to Section 4(a)(2) of the Securities Act and (B) when issued will be free of any restrictive legend and, subject to the requirements of Rule 144(i)(2), will not be subject to restrictions on transfer under Rule 144 promulgated under the Securities Act.
(e) At the applicable Closing, the Shares to be issued at such Closing shall have been approved for listing on The NYSE American, subject only to notice of official issuance.
(f) From January 1, 2023 to the date of this Agreement, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents.
(g) Without the prior written consent of the Investor, the Company shall not disclose the name of the Investor or any Exchanging Investor in any filing or announcement, unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel.
(h) The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Trustee or transfer agent to be reasonably necessary to complete the Exchange.
(i) The Company hereby agrees to publicly disclose on or before 8:30 a.m., New York City time, on the first Business Day after the date hereof, the exchange of the Exchanged Notes as contemplated by this Agreement in a press release, Current Report on Form 8-K or Quarterly Report on Form 10-Q. The Company hereby acknowledges and agrees that any such press release, Current Report on Form 8-K or Quarterly Report on Form 10-Q will disclose all confidential information communicated by the Company to the Investor or any Exchanging Investor in connection with the Exchange to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, that:
(a) The Company is and each of its subsidiaries are entities duly organized, validly existing and in good standing under the laws of the jurisdiction in which it each is formed, and has have the requisite power and authority to own its their properties and to carry on its their business as now being conducted, except in the case of the Company’s subsidiaries as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or financial condition of the Company or its subsidiaries, taken as a whole. The Company and each of its subsidiaries is duly qualified as a foreign entity to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. .
(c) This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, under (i) the charter, charter or bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and each Exchanging Investor herein, any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and that would not, individually or in the aggregate, materially and adversely affect the financial position, results of operations or prospects of the Company and its subsidiaries taken as a whole, or materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(d) When issued, delivered and paid for in the manner set forth in this Agreement, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements to which the Company is a party, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights under the corporation law of the State of Florida or any agreement or arrangement to which the Company is a party (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to 4(a)(2) of the Securities Act, (b) will be issued in CUSIP No. 40000X000, and (c) will be issued in compliance with all applicable securities laws, and at the Closing, be free of any restrictive legend and any restrictions on transfer under Rule 144 promulgated under the Securities Act.
(e) At or before the Closing, the Company will have submitted to the NYSE a Supplemental Listing Application with respect to the Share Consideration. The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities, except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(f) From January 1, 2021 to the date of this Agreement, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements of Regulations S-X and have been prepared in accordance with generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
(g) Without the prior written consent of the Investor, the Company shall not disclose the name of the Investor or any Exchanging Investor in any filing or announcement, unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel.
(h) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to impede the consummation of the Exchange.
(i) The Company hereby agrees to publicly disclose on or before 8:00 a.m., New York City time, on the first Business Day after the date hereof (the “Disclosure Time”), the exchange of the Exchanged Notes as contemplated by this Agreement in a press release or a Current Report on Form 8-K. The Company hereby acknowledges and agrees that any such press release or Current Report on Form 8-K will disclose all confidential information communicated by the Company to the Investor or any Exchanging Investor in connection with the Exchange to the extent the Company believes such confidential information could reasonably be expected to constitute material non-public information, if any, with respect to the Exchange or otherwise. The Company agrees that any confidentiality or other obligations undertaken by the Investor under any agreement between the Company (and/or any of its representatives) and the Investor shall terminate at the Disclosure Time. The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Trustee to be reasonably necessary to complete the Exchange.
(j) The Company understands that the Investor and each Exchanging Investor and others will rely upon the truth and accuracy of the foregoing representations, warranties and covenants and agrees that if any of the representations and warranties deemed to have been made by it are no longer accurate, the Company shall promptly notify the Investor and each Exchanging Investor prior to the Closing. The Company understands that, unless the Company notifies the Investor and each Exchanging Investor in writing to the contrary before the Closing, each of the Company’s representations and warranties contained in this Agreement will be deemed to have been reaffirmed and confirmed as of the Closing.
(k) The Company shall not disclose information regarding the Investor’s positions or transactions in the account at one of its prime brokers to any of Investor’s other prime brokers or to any other person (other than the Company’s agents or representatives).
Appears in 1 contract
Samples: Exchange Agreement (HCI Group, Inc.)
Representations and Warranties and Covenants of the Company. As 2.1 To induce Prudential to execute and deliver this Third Amendment (which representations shall survive the execution and delivery of the date hereof and the Closing Datethis Third Amendment), the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, to Prudential that:
(a) The Company this Third Amendment has been duly authorized, executed and delivered by it and each Guarantor Subsidiary which is duly organizeda signatory hereto and this Third Amendment constitutes the legal, validly existing valid and in good standing under the laws binding obligation, contract and agreement of the jurisdiction Company enforceable against it in which it is formed, and has the requisite power and authority to own accordance with its properties and to carry on its business as now being conductedterms, except as would not reasonably enforcement may be expected limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to have or limiting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a material adverse effect on proceeding in equity or at law);
(b) the businessNote Agreement, propertiesas amended by this Third Amendment, assetsconstitutes the legal, liabilitiesvalid and binding obligation, operations (including results thereof), or condition (financial or otherwise) contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or its subsidiaries, taken as similar laws or equitable principles relating to or limiting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order proceeding in equity or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with at law);
(c) the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
Third Amendment (bi) This Agreement has been duly authorizedauthorized by all requisite corporate action and, executed and delivered by the Company and constitutes a legalif required, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Companyshareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of laws, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which the Company it is a party or by which the Company its properties or any of its assets are or subsidiaries are may be bound, or (iiiB) result in a breach or constitute (alone or with due notice or lapse or both) a default under any lawsindenture, regulations agreement or governmental or judicial decrees, injunctions or orders applicable other instrument referred to the Company and its subsidiaries, except in the case of clauses clause (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwiseiii)(A)(3) of the Company or its subsidiaries, taken this Section 2.1(c); and
(d) as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company date hereof and after giving effect to perform its obligations under this Agreement Third Amendment, no Default or to consummate the transactions contemplated by this AgreementEvent of Default has occurred which is constituting.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As 2.1 To induce Prudential to execute and deliver this Second Amendment (which representations shall survive the execution and delivery of the date hereof and the Closing Datethis Second Amendment), the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, to Prudential that:
(a) The Company is this Second Amendment has been duly organizedauthorized, validly existing executed and in good standing under delivered by it and this Second Amendment constitutes the laws legal, valid and binding obligation, contract and agreement of the jurisdiction Company enforceable against it in which it is formed, and has the requisite power and authority to own accordance with its properties and to carry on its business as now being conductedterms, except as would not reasonably enforcement may be expected limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to have or limiting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a material adverse effect on proceeding in equity or at law);
(b) the businessNote Agreement, propertiesas amended by this Second Amendment, assetsconstitutes the legal, liabilitiesvalid and binding obligation, operations (including results thereof), or condition (financial or otherwise) contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or its subsidiaries, taken as similar laws or equitable principles relating to or limiting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order proceeding in equity or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with at law);
(c) the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
Second Amendment (bi) This Agreement has been duly authorizedauthorized by all requisite corporate action and, executed and delivered by the Company and constitutes a legalif required, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Companyshareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which the Company it is a party or by which the Company its properties or any of its assets are or subsidiaries are may be bound, or (iiiB) result in a breach or constitute (alone or with due notice or lapse or both) a default under any lawsindenture, regulations agreement or governmental or judicial decrees, injunctions or orders applicable other instrument referred to the Company and its subsidiaries, except in the case of clauses clause (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwiseiii)(A)(3) of the Company or its subsidiaries, taken this Section 2.1(c); and
(d) as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company date hereof and after giving effect to perform its obligations under this Agreement Second Amendment, no Default or to consummate the transactions contemplated by this AgreementEvent of Default has occurred which is continuing.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As 2.1 To induce Prudential to execute and deliver this Seventh Amendment (which representations shall survive the execution and delivery of the date hereof and the Closing Datethis Seventh Amendment), the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, to Prudential that:
(a) The Company is this Seventh Amendment has been duly organizedauthorized, validly existing executed and in good standing under delivered by it and this Seventh Amendment constitutes the laws legal, valid and binding obligation, contract and agreement of the jurisdiction Company, enforceable against it in which it is formed, and has the requisite power and authority to own accordance with its properties and to carry on its business as now being conductedterms, except as would not reasonably enforcement may be expected limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to have or limiting creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a material adverse effect on proceeding in equity or at law);
(b) the businessPrivate Shelf Facility, propertiesas amended by this Seventh Amendment, assetsconstitutes the legal, liabilitiesvalid and binding obligation, operations (including results thereof), or condition (financial or otherwise) contract and agreement of the Company Company, enforceable against it in accordance with its terms, except as enforcement may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or its subsidiaries, taken as a whole. The Company has the power, authority and capacity similar laws or equitable principles relating to execute and deliver this Agreement, to perform its obligations hereunderor limiting creditors’ rights generally, and to consummate the Exchange contemplated hereby. No consent, approval, order (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with at law);
(c) the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
Seventh Amendment (bi) This Agreement has been duly authorizedauthorized by all requisite corporate action and, executed and delivered by the Company and constitutes a legalif required, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Companyshareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which the Company it is a party or by which the Company its properties or any of its assets are or subsidiaries are may be bound, or (iiiB) result in a breach or constitute (alone or with due notice or lapse or both) a default under any lawsindenture, regulations agreement or governmental or judicial decrees, injunctions or orders applicable other instrument referred to the Company and its subsidiaries, except in the case of clauses clause (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwiseiii)(A)(3) of the Company or its subsidiaries, taken this Section 2.1(c); and
(d) as a whole, and would not, individually or in the aggregate, materially impair the ability of the date hereof and after giving effect to this Seventh Amendment, no Default or Event of Default has occurred which is continuing.
2.2 The Company to perform its obligations under agrees that it shall promptly pay the reasonable fees and expenses of Xxxxxxx XxXxxxxxx LLP in connection with the negotiation, preparation, approval, execution and delivery of this Agreement or to consummate the transactions contemplated by this AgreementSeventh Amendment.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As 2.1 To induce Prudential to execute and deliver this Sixth Amendment (which representations shall survive the execution and delivery of the date hereof and the Closing Datethis Sixth Amendment), the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, to Prudential that:
(a) The Company is this Sixth Amendment has been duly organizedauthorized, validly existing executed and in good standing under delivered by it and this Sixth Amendment constitutes the laws legal, valid and binding obligation, contract and agreement of the jurisdiction Company, enforceable against it in which it is formed, and has the requisite power and authority to own accordance with its properties and to carry on its business as now being conductedterms, except as would not reasonably enforcement may be expected limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to have or limiting creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a material adverse effect on proceeding in equity or at law);
(b) the businessNote Agreement, propertiesas amended by this Sixth Amendment, assetsconstitutes the legal, liabilitiesvalid and binding obligation, operations (including results thereof), or condition (financial or otherwise) contract and agreement of the Company Company, enforceable against it in accordance with its terms, except as enforcement may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or its subsidiaries, taken as a whole. The Company has the power, authority and capacity similar laws or equitable principles relating to execute and deliver this Agreement, to perform its obligations hereunderor limiting creditors’ rights generally, and to consummate the Exchange contemplated hereby. No consent, approval, order (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with at law);
(c) the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
Sixth Amendment (bi) This Agreement has been duly authorizedauthorized by all requisite corporate action and, executed and delivered by the Company and constitutes a legalif required, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Companyshareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which the Company it is a party or by which the Company its properties or any of its assets are or subsidiaries are may be bound, or (iiiB) result in a breach or constitute (alone or with due notice or lapse or both) a default under any lawsindenture, regulations agreement or governmental or judicial decrees, injunctions or orders applicable other instrument referred to the Company and its subsidiaries, except in the case of clauses clause (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwiseiii)(A)(3) of the Company or its subsidiaries, taken this Section 2.1(c); and
(d) as a whole, and would not, individually or in the aggregate, materially impair the ability of the date hereof and after giving effect to this Sixth Amendment, no Default or Event of Default has occurred which is continuing.
2.2 The Company to perform its obligations under agrees that it shall promptly pay the reasonable fees and expenses of Xxxxxxx XxXxxxxxx LLP in connection with the negotiation, preparation, approval, execution and delivery of this Agreement or to consummate the transactions contemplated by this AgreementSixth Amendment.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investor that:
(a) The Company is duly organized, validly existing and in good standing under the laws of the its respective jurisdiction in which it is formed, of incorporation and has the requisite power and authority to own its properties and to carry on its their business as now being conducted. The Company is duly qualified as a foreign entity to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except as to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, power and authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (A) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (B) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity (the “Enforceability Exceptions”).
(c) This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under (i) the charter or bylaws of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets are bound, or (iii) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults are not material and would not, individually or in the aggregate materially impair the ability of the Company to perform its obligations under this Agreement or the Warrant or to consummate the transactions contemplated by this Agreement. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(bd) This Agreement The Warrant has been duly authorizedauthorized and, when issued, delivered and paid for in the manner set forth in this Agreement and when executed and delivered by as contemplated hereby, the Company and constitutes a legal, Warrant will constitute the valid and legally binding obligation of the Company, Company enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equitythe Enforceability Exceptions. This Agreement and consummation of Assuming the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the Investor’s representations and warranties and compliance with hereunder, the covenants Warrant will be issued in reliance on the exemption from the registration requirements of the Investor hereinSecurities Act pursuant to Section 3(a)(9) and/or Section 4(a)(2) of the Securities Act and will not require registration or qualification under applicable federal and state securities laws.
(e) The Warrant Shares have been duly authorized and reserved for issuance upon exercise of the Warrant and, when issued upon the valid exercise of the Warrant in accordance with its terms, the Warrant Shares will (i) the charterbe validly issued, bylaws or other organizational documents of the Companyfully paid and non-assessable, (ii) be free and clear of any agreement Liens (as defined in Section 3(c) below), option, equity or instrument other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements to which the Company is a party, (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights under the General Corporation Law of the State of Delaware or any to which the Company is a party (other than any such rights that will be waived prior to the Closing), and (iv) assuming the accuracy of the Investor’s representations and warranties hereunder, will be issued in reliance on the exemption from the registration requirements of the Securities Act pursuant to Section 3(a)(9) and/or Section 4(a)(2) of the Securities Act and will not require registration or by which qualification under applicable federal and state securities laws.
(f) Neither the Company nor any of its subsidiaries is an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither the Company nor any of its subsidiaries is engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Neither the Company nor any of its subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005.
(g) Since January 1, 2022, the Company has timely filed with the Securities and Exchange Commission all filings required by Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder (the “Exchange Act Reports”). The Exchange Act Reports, when they were filed with the Securities and Exchange Commission, conformed in all material respects to the applicable requirements of the Exchange Act and the applicable rules and regulations thereunder. The Exchange Act Reports did not, when filed with the Securities and Exchange Commission, contain an untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(h) The Company is in material compliance with the applicable rules and regulations of NYSE American, including the NYSE American continued listing requirements. There are no proceedings pending or, to the Company’s knowledge, threatened against the Company relating to the continued listing of the Company’s shares of Common Stock, par value $0.001 per share (the “Common Stock”), on NYSE American, and the Company has not received any notice of the delisting of the Common Stock from NYSE American.
(i) As of the date hereof, the authorized capital stock of the Company consists of (i) 900,000,000 shares of Common Stock, of which 479,780,414 shares are issued and outstanding; and (ii) 5,000,000 shares of preferred stock, par value $0.001 per share, of which 30,000 shares are designated as Series A Convertible Preferred Stock, none of which are issued and outstanding, and 12,000 shares are designated as Series B Convertible Preferred Stock, of which 12,000 shares are issued and outstanding and which shares are convertible to an aggregate of 30,372,058 shares of Common Stock). As of the date hereof, the Company has outstanding (i) $51,199,000 aggregate principal amount of senior convertible notes due January 15, 2025 (the “2025 Notes”), which 2025 Notes are convertible into an aggregate of 39,041,664 shares of Common Stock; (ii) stock options and restricted stock units covering an aggregate of 21,566,717 shares of Common Stock; and (iii) warrants to purchase an aggregate of 3,177,821 shares of Common Stock. Except as set forth herein, as of the date hereof, there are no outstanding options, warrants, or rights to acquire from the Company any shares of Common Stock or preferred stock, or any securities convertible into or exchangeable for shares of Common Stock or preferred stock.
(j) The financial statements of the Company included in the Exchange Act Reports (i) have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved ("GAAP"), except as may be otherwise specified in such financial statements or the notes thereto, and except that unaudited financial statements may not contain all footnotes required by GAAP, and (ii) fairly present in all material respects the financial position of the Company and its consolidated subsidiaries as of the dates thereof and the results of operations and cash flows for the periods presented, subject, in the case of unaudited financial statements, to normal, immaterial, year-end audit adjustments, except, in the case of either (i) or (ii) above, to the extent that any departure from GAAP or failure to accurately present the financial position, results of operations or cash flows of the Company is a result, in whole or in part, of inaccurate or untimely financial, operating or other information provided to the Company by the Investor or any of its assets or subsidiaries are bound, or Affiliates (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to as defined in Rule 405 under the Company and its subsidiaries, except in the case of clauses (ii) or (iiiSecurities Act), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing DateClosing, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is duly organized, incorporated and validly existing and in good standing under the laws of the jurisdiction in which it is formedDelaware, and has the requisite with full power and authority to own its properties and to carry on conduct its business as now it is currently being conducted, except as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, conducted and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of own its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penaltyassets.
(b) The Company has full power and authority to enter into this Agreement and perform all obligations required to be performed by the Company hereunder.
(c) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (ai) bankruptcy, fraudulent conveyance, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (bii) general principles of equity, equity (regardless of whether such enforceability is considered in a proceeding equity or at law or in equity. This law).
(d) The execution of this Agreement by the Company and the consummation by the Company of the Exchange transactions contemplated hereby (i) does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including NASDAQ, other than the filing with NASDAQ of a Listing of Additional Shares notification (the “LAS”), which the Company will so file prior to the issuance of Shares on the Closing Date), or court, or body or arbitrator having jurisdiction over the Company (except as may be required under the securities or Blue Sky laws of the various states); and (ii) does not and will not violate, conflict with constitute or result in a breach of breach, violation or default underunder any note, assuming bond, mortgage, deed, indenture, lien, instrument, contract, agreement, lease or license, whether written or oral, express or implied, or with the truth Company’s Certificate of Incorporation or by-laws, or any statute, law, ordinance, decree, order, injunction, rule, directive, judgment or regulation of any court, administrative or regulatory body, governmental authority, arbitrator, mediator or similar body on the part of the Company or on the part of any other party thereto or cause the acceleration or termination of any obligation or right of the Company or any other party thereto.
(e) The Shares have been duly reserved for issuance and, when issued, delivered and paid for in the manner set forth in this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights, other than any rights that have been complied with or waived.
(f) (i) Assuming the accuracy of the representations and warranties and compliance with the covenants of the Investor hereinset forth in this Agreement, the issuance of the Shares pursuant to this Agreement are exempt from the registration requirements of the Securities Act and the Shares will not be subject to restrictions on transfer under the Securities Act (and will not have any restrictive legends on such certificates or book-entry notations representing such Shares).
(ii) Assuming the accuracy of the representations and warranties of the Investor set forth in this Agreement, the Exchange Notes (and the shares of Common Stock issuable upon conversion thereof) and the Accrued Interest Shares, when issued pursuant to this Agreement, will not be “restricted securities” as defined in Rule 144 under the Securities Act.
(g) (A) As of the date hereof, (x) the Company is not aware of any material non-public information regarding the Company, other than any material non-public information relating to the Exchange, and (y) all reports and other documents filed by the Company with the Securities and Exchange Commission (the “SEC”) pursuant to the Securities Exchange Act of 1934, as amended, since January 1, 2020 when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, other than, any material facts with respect to information regarding the Exchange, the Information (as defined below) or any information referred to in the wall-crossing email referenced in Section 4(y) below and (B) the Company hereby agrees to publicly disclose on or before 9:00 a.m., New York City time, on the first business day after the date hereof, the Exchange as contemplated by this Agreement in a press release; provided that (i) if the charter, bylaws or other organizational documents of the Company, Exchange does not take place and (ii) any agreement or instrument to which the Company believes, in good faith, that there is a party or by which no legal requirement to publicly disclose information about the Exchange, no press release will be required; provided, further that the Company or any of shall provide the Investor and its assets or subsidiaries are boundcounsel an opportunity to review and comment on the press release prior to its release; provided, or (iii) any lawsfurther that if the Investor is named in such press release, regulations or governmental or judicial decrees, injunctions or orders applicable to such press release shall be in a form mutually agreed upon between the Company and its subsidiariesthe Investor. For the avoidance of doubt, except in the case Company may be aware of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on non-public information regarding the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) Company at the time of the Closing that has not been communicated to the Investor or any Exchanging Investor.
(h) The Company or is responsible for paying all of its subsidiariesfees and expenses, taken as a wholethe fees and expenses of its advisors, transfer agent, registrar and would notother representatives, individually or in the aggregateif any, materially impair the ability of the transactions contemplated by this Agreement; provided that Investor (for itself and on behalf of the Exchanging Investors) is responsible for any applicable transfer taxes.
(i) The Company will, upon request, execute and deliver any additional documents deemed by the Trustee or the transfer agent to perform its obligations under this Agreement or be reasonably necessary to consummate complete the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Exchange Agreement (Tilray, Inc.)
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, that:
(a) The Company is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed, and has the requisite power and authority to own its properties and to carry on its business as now being conducted, except as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company is duly qualified as a foreign entity to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(c) When delivered to the applicable Exchanging Investor pursuant to the Exchange in accordance with the terms of this Agreement, the Shares, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 2(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements (in each case, other than as may have been created by the Investor or the Exchanging Investor, or imposed upon either of them due to circumstances related to the Investor or the Exchanging Investor not arising out of the Exchange), and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange exempt from the registration requirements of the Securities Act pursuant to Section 4(a)(2) of the Securities Act, (b) will be issued in CUSIP No. 100000000, and (c) will be issued in compliance with all applicable state and federal laws and, at the Closing, be free of any restrictive legend and any restrictions on resale by such Exchanging Investor pursuant to Rule 144 promulgated under the Securities Act.
(d) At the Closing, the Shares shall have been approved for listing on the NYSE.
(e) At or prior to 9:00 a.m., New York City time, on the first business day after the date hereof, the Company shall file with the Commission a current report on Form 8-K announcing the Exchange, which current report the Company acknowledges and agrees will disclose all confidential information (as described in the Wall Cross Email) to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or was otherwise communicated by the Company to the Investor in connection with the Exchange.
(f) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened against the Company that would reasonably be expected to materially impede the consummation of the Exchange.
(g) No statement or printed material which is contrary to the publicly available filings and submissions made by the Company with the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended, or any other documents and agreements used in connection with the Exchange has been made or given to the Investor by or on behalf of the Company.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed, and has the requisite power and authority to own its properties and to carry on its business as now being conducted, except as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, results of operations (including results thereof), or financial condition (financial or otherwise) of the Company or its subsidiaries, taken as a wholewhole (a “Company Material Adverse Effect”). The Company is duly qualified to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Company Material Adverse Effect. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penaltypenalty to the Investor or as would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equityequity (the “Enforceability Exceptions”). This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a wholeMaterial Adverse Effect, and would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(c) When delivered to the applicable Exchanging Investor pursuant to the Exchange in accordance with the terms of this Agreement, the Shares, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, will be validly issued, fully paid and non-assessable and free and clear of any Liens (as defined in Section 2(c) below). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties and compliance with the covenants of the Investor herein, the Shares (a) will be issued in the Exchange exempt from the registration requirements of the Securities Act pursuant to Section 4(a)(2) of the Securities Act and (b) will be issued in compliance with all applicable state and federal laws and, at the Closing, be free of any restrictive legend and any restrictions on resale by such Exchanging Investor subject to the conditions set forth in and pursuant to Rule 144 promulgated under the Securities Act.
(d) At the Closing, the Shares shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(e) At or prior to 9:00 a.m., New York City time, on the first business day after the date hereof, the Company shall file with the Commission a current report on Form 8-K announcing the Exchange, which current report the Company acknowledges and agrees will disclose all confidential information (as described in the Wall Cross Email) to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or was otherwise communicated by the Company to the Investor in connection with the Exchange.
(f) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened against the Company that would reasonably be expected to materially impede the consummation of the Exchange.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and as of the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is and each of its subsidiaries are entities duly organized, validly existing and in good standing under the laws of the jurisdiction in which it each is formed, and has have the requisite power and authority to own its their properties and to carry on its their business as now being conducted, except in the case of the Company’s subsidiaries as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) ), results of operations, assets, properties, business or prospects of the Company or and its subsidiaries, subsidiaries taken as a wholewhole (a “Material Adverse Effect”). The Company and each of its subsidiaries is duly qualified as a foreign entity to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penaltypenalty to such Exchanging Investor or as would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement or have a Material Adverse Effect.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. .
(c) This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, and each Exchanging Investor herein (i) the charter, charter or bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) , any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement or have a Material Adverse Effect.
(d) When issued, delivered and paid for in the manner set forth in this Agreement, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and each Exchanging Investor herein, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 3(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements to which the Company is a party, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights under the General Corporation Law of the State of Delaware or any agreements to which the Company is a party (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder and compliance with the covenants of the Investor and each Exchanging Investor herein, the Shares (a) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to 4(a)(2) of the Securities Act and (b) when issued will be free of any restrictive legend or stop transfer instruction and will be freely tradable pursuant to Rule 144 promulgated under the Securities Act.
(e) The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including Nasdaq, other than the filing with Nasdaq of a Listing of Additional Shares notification which the Company will so file prior to the issuance of Shares on the Closing Date), except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(f) From January 1, 2023 to the date of this Agreement, the Company has timely filed (giving effect to any extensions obtained pursuant to timely filed notifications of late filings) all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents. The SEC Documents, taken as a whole, do not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to materially impede the consummation of the Exchange.
(h) The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Trustee or transfer agent to be reasonably necessary to complete the Exchange.
(i) The Company hereby agrees to publicly disclose on or before 8:30 a.m., New York City time, on the first Business Day after the date hereof, the exchange of the Exchanged Notes as contemplated by this Agreement in a Current Report on Form 8-K. The Company hereby acknowledges and agrees that any such Current Report on Form 8-K will disclose all confidential information (as described in the Wall Cross Email) communicated by the Company or its representatives to the Investor or any Exchanging Investor in connection with the Exchange to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise.
(j) The Company as of the date hereof is not in default under, and no events currently exist that could give rise to, a default or an event of default under the Indenture.
(k) At or before the Closing, the Company will have submitted to the Nasdaq Stock Market an Application for Listing of Additional Shares with respect to the Shares. The Company will use its commercially reasonable efforts to maintain the listing of the Shares on the Nasdaq Global Select Market for so long as the Common Stock is then so listed.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As 2.1 To induce Prudential to execute and deliver this First Amendment (which representations shall survive the execution and delivery of the date hereof and the Closing Datethis First Amendment), the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, to Prudential that:
(a) The Company is this First Amendment has been duly organizedauthorized, validly existing executed and in good standing under delivered by it and this First Amendment constitutes the laws legal, valid and binding obligation, contract and agreement of the jurisdiction Company enforceable against it in which it is formed, and has the requisite power and authority to own accordance with its properties and to carry on its business as now being conductedterms, except as would not reasonably enforcement may be expected limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to have or limiting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a material adverse effect on proceeding in equity or at law);
(b) the businessPrivate Shelf Facility, propertiesas amended by this First Amendment, assetsconstitutes the legal, liabilitiesvalid and binding obligation, operations (including results thereof), or condition (financial or otherwise) contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or its subsidiaries, taken as similar laws or equitable principles relating to or limiting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order proceeding in equity or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with at law);
(c) the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
First Amendment (bi) This Agreement has been duly authorizedauthorized by all requisite corporate action and, executed and delivered by the Company and constitutes a legalif required, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Companyshareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which the Company it is a party or by which the Company its properties or any of its assets are or subsidiaries are may be bound, or (iiiB) result in a breach or constitute (alone or with due notice or lapse or both) a default under any lawsindenture, regulations agreement or governmental or judicial decrees, injunctions or orders applicable other instrument referred to the Company and its subsidiaries, except in the case of clauses clause (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwiseiii)(A)(3) of the Company or its subsidiaries, taken this Section 2.1(c); and
(d) as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company date hereof and after giving effect to perform its obligations under this Agreement First Amendment, no Default or to consummate the transactions contemplated by this AgreementEvent of Default has occurred which is continuing.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, that:
(a) The Company is and each of its subsidiaries are entities duly organized, validly existing and in good standing under the laws of the jurisdiction in which it each is formed, and has have the requisite power and authority to own its their properties and to carry on its their business as now being conducted, except in the case of the Company’s subsidiaries as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company and each of its subsidiaries is duly qualified as a foreign entity to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, under (i) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(c) When delivered to the applicable Exchanging Investor pursuant to the Exchange in accordance with the terms of this Agreement, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 2(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange exempt from the registration requirements of the Securities Act pursuant to Section 4(a)(2) of the Securities Act, (b) will be issued in CUSIP No. 094235 108, and (c) will be issued in compliance with all applicable state and federal laws, and at the Closing, be free of any restrictive legend and any restrictions on resale by such Exchanging Investor pursuant to Rule 144 promulgated under the Securities Act.
(d) At the Closing, the Common Stock shall be listed on NASDAQ and the Shares shall have been approved for listing on the NASDAQ in accordance with the applicable rules thereof.
(e) From January 1, 2022 to the date of this Agreement, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements of Regulations S-X and have been prepared in accordance with U.S. generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
(f) At or prior to 9:00 a.m., New York City time, on the first business day after the date hereof, the Company shall file with the SEC a current report on Form 8-K announcing the Exchange, which current report the Company acknowledges and agrees will disclose all confidential information (as described in the Wall Cross Email) to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise communicated by the Company to the Investor in connection with the Exchange.
(g) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to impede the consummation of the Exchange.
(h) No statement or printed material which is contrary to the publicly available filings and submissions made by the Company with the SEC under the Exchange Act, or any other documents and agreements used in connection with the Exchange has been made or given to the Investor by or on behalf of the Company.
(i) The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Investor to be reasonably necessary to complete the Exchange.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, Investors that:
(a) The Company is and each of its subsidiaries are entities duly organized, validly existing and in good standing under the laws of the jurisdiction in which it each is formed, and has have the requisite power and authority to own its their properties and to carry on its their business as now being conducted, except in the case of the Company’s subsidiaries as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or financial condition of the Company or its subsidiaries, taken as a whole. The Company and each of its subsidiaries is duly qualified as a foreign entity to do business (where such concept exists) and is in good standing in every jurisdiction (where such concept exists) in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. .
(c) This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, under (i) the charter, charter or bylaws or other organizational documents of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and each Exchanging Investor herein, any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, materially impair the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.
(d) When issued, delivered and paid for in the manner set forth in this Agreement, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 3(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements to which the Company is a party, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights under the General Corporation Law of the State of Delaware or any to which the Company is a party (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to 4(a)(2) of the Securities Act and (b) when issued will be free of any restrictive legend and any restrictions on transfer under Rule 144 promulgated under the Securities Act.
(e) The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including Nasdaq, other than the filing with Nasdaq of a Listing of Additional Shares notification which the Company will so file prior to the issuance of Shares on the Closing Date), except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.
(f) From January 1, 2021 to the date of this Agreement, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents.
(g) Without the prior written consent of the Investor, the Company shall not disclose the name of the Investor or any Exchanging Investor in any filing or announcement, unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel.
(h) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to impede the consummation of the Exchange.
(i) The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Trustee or transfer agent to be reasonably necessary to complete the Exchange.
(j) The Company hereby agrees to publicly disclose on or before 8:30 a.m., New York City time, on the first Business Day after the date hereof, the exchange of the Exchanged Notes as contemplated by this Agreement in a press release or a Current Report on Form 8-K. The Company hereby acknowledges and agrees that any such press release or Current Report on Form 8-K will disclose all confidential information communicated by the Company to the Investor or any Exchanging Investor in connection with the Exchange to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise.
Appears in 1 contract
Representations and Warranties and Covenants of the Company. As 2.1 To induce Prudential to execute and deliver this Sixth Amendment (which representations shall survive the execution and delivery of the date hereof and the Closing Datethis Sixth Amendment), the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, to Prudential that:
(a) The Company is this Sixth Amendment has been duly organizedauthorized, validly existing executed and in good standing under delivered by it and this Sixth Amendment constitutes the laws legal, valid and binding obligation, contract and agreement of the jurisdiction Company, enforceable against it in which it is formed, and has the requisite power and authority to own accordance with its properties and to carry on its business as now being conductedterms, except as would not reasonably enforcement may be expected limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to have or limiting creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a material adverse effect on proceeding in equity or at law);
(b) the businessPrivate Shelf Facility, propertiesas amended by this Sixth Amendment, assetsconstitutes the legal, liabilitiesvalid and binding obligation, operations (including results thereof), or condition (financial or otherwise) contract and agreement of the Company Company, enforceable against it in accordance with its terms, except as enforcement may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or its subsidiaries, taken as a whole. The Company has the power, authority and capacity similar laws or equitable principles relating to execute and deliver this Agreement, to perform its obligations hereunderor limiting creditors’ rights generally, and to consummate the Exchange contemplated hereby. No consent, approval, order (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with at law);
(c) the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty.
Sixth Amendment (bi) This Agreement has been duly authorizedauthorized by all requisite corporate action and, executed and delivered by the Company and constitutes a legalif required, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity. This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, (i) the charter, bylaws or other organizational documents of the Companyshareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which the Company it is a party or by which the Company its properties or any of its assets are or subsidiaries are may be bound, or (iiiB) result in a breach or constitute (alone or with due notice or lapse or both) a default under any lawsindenture, regulations agreement or governmental or judicial decrees, injunctions or orders applicable other instrument referred to the Company and its subsidiaries, except in the case of clauses clause (ii) or (iii), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwiseiii)(A)(3) of the Company or its subsidiaries, taken this Section 2.1(c); and
(d) as a whole, and would not, individually or in the aggregate, materially impair the ability of the date hereof and after giving effect to this Sixth Amendment, no Default or Event of Default has occurred which is continuing.
2.2 The Company to perform its obligations under agrees that it shall promptly pay the reasonable fees and expenses of Xxxxxxx XxXxxxxxx LLP in connection with the negotiation, preparation, approval, execution and delivery of this Agreement or to consummate the transactions contemplated by this AgreementSixth Amendment.
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Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors, and all such covenants, representations and warranties shall survive the Closing, that:
(a) The Company is duly organizedincorporated, validly existing and in good standing under the laws of the its jurisdiction in which it is formedof organization, and has the requisite power and authority to own its properties and to carry on its business as now being conducted, except as would not reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole. The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No material consent, approval, order or authorization of, or registrationmaterial registration or declaration with, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company it of this Agreement and the consummation by the Company of the Exchangetransactions contemplated hereby, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penaltypenalty or such that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the financial position or results of operations of the Company and its subsidiaries, taken as a whole.
(b) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equityequity (the “Enforceability Exceptions”). This Assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and Exchanging Investors herein, this Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under, assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor herein, under (ia) the chartercertificate of incorporation, bylaws or other organizational documents of the Company, (iib) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iiic) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiariesCompany, except in the case of clauses (iib) or (iiic), where such violations, conflicts, breaches or defaults would not reasonably be expected to have a material adverse effect on affect the business, properties, assets, liabilities, operations (including results thereof), or condition (financial or otherwise) of the Company or its subsidiaries, taken as a whole, and would not, individually or in the aggregate, materially impair the Company’s ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by hereby.
(c) When delivered to the applicable Exchanging Investor pursuant to the Exchange in accordance with the terms of this Agreement, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 3(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights (other than any such rights that will be waived prior to the Closing). Assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and each Exchanging Investor herein, the Shares (A) will be issued in the Exchange exempt from the registration requirements of the Securities Act pursuant to 4(a)(2) of the Securities Act, (B) will be issued in CUSIP No. 00000X000, and (C) will be free of any restrictive legend and any restrictions on resale on the Closing Date by such Exchanging Investor pursuant to Rule 144 promulgated under the Securities Act.
(d) At the Closing, the Shares shall have been approved for listing on the NYSE.
(e) For the prior twelve months,, the Company has timely filed all reports required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as applicable (other than Form 8-K reports), and every required interactive data file required to be submitted to the SEC.
(f) At or prior to 9:00 a.m., New York City time, on the first business day after the date hereof, the Company shall file with the Commission a current report on Form 8-K announcing the Exchange, which current report the Company acknowledges and agrees will disclose all confidential information (as described in the Wall Cross Email) to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise communicated by the Company to the Investor in connection with the Exchange.
(g) There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to impede the consummation of the Exchange.
(h) No statement or printer material which is contrary to the publicly available filings and submissions made by the Company with the SEC under the Exchange Act, or any other documents and agreements used in connection with the Exchange has been made or given to the Investor by or on behalf of the Company.
(i) The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Investor to be reasonably necessary to complete the Exchange.
Appears in 1 contract
Samples: Exchange Agreement (Helix Energy Solutions Group Inc)
