Representations and Warranties and Covenants of the Company. As of the date hereof and as of the Closing, the Company represents and warrants to, and covenants with, the Exchanging Investors that: (a) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority to own, lease and operate its properties and to conduct its business as it is currently being conducted. (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 limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at 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); (ii) does not and will not constitute or result in a breach, violation or default under any note, bond, mortgage, deed, indenture, lien, instrument, contract, agreement, lease or license, whether written or oral, express or implied, 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 cause the acceleration or termination of any obligation or right of the Company, and (iii) does not and will not constitute or result in a breach, violation or default under the Company’s Certificate of Incorporation or by-laws, except in the case of clause (ii), where such violations, conflicts, breaches or defaults would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, properties, financial position, stockholders’ equity, or results of operations of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”) or prevent or materially interfere with consummation of the transactions contemplated by this Agreement. (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 of the Investor set 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) 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 if the Exchange does not take place no press release will be required. The Company hereby acknowledges and agrees that any 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. (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 and each of its subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X promulgated under the Securities Act (“subsidiaries”) 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, (ii) prevent or materially interfere with consummation of the transactions contemplated by this Agreement, or (iii) result in the delisting of Shares from NASDAQ.
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 as of the Closingthis Fifth Amendment), the Company represents and warrants to, and covenants with, the Exchanging Investors to Prudential that:
(a) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority to own, lease and operate its properties and to conduct its business as it is currently being conducted.
(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 Fifth Amendment has been duly authorized, executed and delivered by it and this Fifth Amendment constitutes the Company and constitutes a legal, valid and binding obligation obligation, contract and agreement of the Company, enforceable against the Company it in accordance with its terms, except that such as enforcement may be limited by (i) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers)insolvency, reorganization, moratorium or similar laws affecting enforcement of or equitable principles relating to or limiting creditors’ rights generally generally, and except as enforcement thereof is subject to (ii) general principles of equity (regardless of whether enforcement such enforceability is considered in a proceeding in equity or at law).;
(db) The execution the Private Shelf Facility, as amended by this Fifth Amendment, constitutes the legal, valid and binding obligation, contract and agreement of this Agreement the Company, enforceable against it in accordance with its terms, except as enforcement may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or 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 proceeding in equity or at law);
(c) the Company execution, delivery and the consummation performance by the Company of the transactions contemplated hereby this Fifth Amendment (i) has been duly authorized by all requisite corporate action and, if required, shareholder action, (ii) does not require the consent, approval, authorization, order, registration consent or qualification of, or filing with, approval of any governmental authority, non-governmental or 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); (ii) does not and will not constitute or result in a breach, violation or default under any note, bond, mortgage, deed, indenture, lien, instrument, contract, agreement, lease or license, whether written or oral, express or implied, 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 cause the acceleration or termination of any obligation or right of the Companyagency, and (iii) does not and will not constitute (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 it is a party or by which its properties or assets are or may be bound, or (B) result in a breach, violation breach or constitute (alone or with due notice or lapse or both) a default under the Company’s Certificate of Incorporation any indenture, agreement or by-laws, except other instrument referred to in the case of clause (iiiii)(A)(3) of this Section 2.1(c), where such violations, conflicts, breaches or defaults would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, properties, financial position, stockholders’ equity, or results of operations ; and
(d) as of the Company date hereof and its subsidiaries taken as a whole (a “Material Adverse Effect”) after giving effect to this Fifth Amendment, no Default or prevent or materially interfere with consummation Event of the transactions contemplated by this AgreementDefault has occurred which is continuing.
(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 of the Investor set 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) 2.2 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 if the Exchange does not take place no press release will be required. The Company hereby acknowledges and agrees that any press release will disclose all confidential information to it shall promptly pay 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 reasonable fees and expenses of Xxxxxxx XxXxxxxxx LLP in connection with the Exchangenegotiation, preparation, approval, execution and delivery of this Fifth Amendment.
(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 and each of its subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X promulgated under the Securities Act (“subsidiaries”) 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, (ii) prevent or materially interfere with consummation of the transactions contemplated by this Agreement, or (iii) result in the delisting of Shares from NASDAQ.
Appears in 1 contract
Samples: Multi Currency Private Shelf Agreement (Nu Skin Enterprises Inc)
Representations and Warranties and Covenants of the Company. As of the date hereof and as of the Closing, the Company represents and warrants to, and covenants with, the Exchanging Investors that:
(a) The Company has been is duly organized and is validly existing as a corporation in good standing under the laws of the State Commonwealth of Delaware and has the corporate Massachusetts, with full power and authority to own, lease and operate its properties and to conduct its business as it is currently being conductedconducted and to own its assets.
(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 limited by subject to (i) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers)insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and except as enforcement thereof is subject to (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law)equity.
(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 constitute or result in a breach, violation or default under any note, bond, mortgage, deed, indenture, lien, instrument, contract, agreement, lease or license, whether written or oral, express or implied, or with the 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, and (iii) does not and will not constitute Company or result in a breach, violation or default under the Company’s Certificate of Incorporation or by-laws, except in the case of clause (ii), where such violations, conflicts, breaches or defaults would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, properties, financial position, stockholders’ equity, or results of operations of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”) or prevent or materially interfere with consummation of the transactions contemplated by this Agreementany 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 of the Investor set 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 book-entry notations representing such Shares).
(g) 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 or the Information (as defined below). 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 hereofhereof (the “Release Time”), the exchange of the Exchanged Notes as contemplated by this Agreement in a press releaserelease or Current Report on Form 8-K; provided that (i) if the Exchange does not take place or (ii) the Company believes, in good faith, that there is no legal requirement to publicly disclose information about the Exchange, no press release or Current Report on Form 8-K will be required. The As of the Release Time, the Company hereby acknowledges and agrees that any press release will disclose have disclosed 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) [Reserved]
(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 (“subsidiaries”) 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 business, properties, financial position, stockholders’ equity, or results of operations of the Company 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 is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority (including, without limitation, the rules and regulations of the NASDAQ), in each case, applicable to the Company, except, in the case of clauses (ii) and (iii) above, for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(m) The Company is not and, after giving effect to 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
Samples: Exchange Agreement (Immunogen Inc)
Representations and Warranties and Covenants of the Company. As of the date hereof and as of the Closing, the The Company hereby represents and warrants to, and covenants with, the Exchanging Investors thatas follows:
(a) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority to ownexecute, lease deliver and operate its properties carry out the terms and provisions of this Agreement and to conduct its business as it is currently being conductedconsummate the transactions contemplated hereby.
(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 and validly authorized, executed and delivered by the Company and Company, constitutes a legal, valid and binding obligation and agreement of the Company, and is enforceable against the Company in accordance with its terms, except that such enforcement may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(dc) The execution execution, delivery and performance of this Agreement by the Company does not and the consummation by the Company of the transactions contemplated hereby will not violate or conflict with (i) does not require any law, rule, regulation, order, judgment or decree applicable to it, or (ii) result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both could become a default) under or pursuant to, or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, agreement, contract, commitment, understanding or arrangement to which the Company is a party or by which it is bound.
(d) No consent, approval, authorization, order, registration license or qualification clearance of, or filing or registration with, any governmental authorityor notification to, 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); (ii) does not and will not constitute or result in a breach, violation or default under any note, bond, mortgage, deed, indenture, lien, instrument, contract, agreement, lease or license, whether written or oral, express or implied, or any statute, law, ordinance, decree, order, injunction, rule, directive, judgment or regulation of any court, administrative legislative, executive or regulatory body, governmental authority, arbitrator, mediator authority or similar body on the part of agency is required in order to permit the Company or cause the acceleration or termination of any obligation or right of the Company, and (iii) does not and will not constitute or result in a breach, violation or default to perform its obligations under the Company’s Certificate of Incorporation or by-lawsthis Agreement, except in the case of clause (ii), where for such violations, conflicts, breaches or defaults would not, individually or in the aggregate, reasonably be expected to as have a material adverse effect on the business, properties, financial position, stockholders’ equity, or results of operations of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”) or prevent or materially interfere with consummation of the transactions contemplated by this Agreementbeen obtained.
(e) The Shares have been duly reserved for issuance andCompany shall (i) prepare and file its 2006 Annual Report with the Securities and Exchange Commission no later than is reasonably practicable and (ii) prepare, when issued, delivered file with the Securities and paid for in Exchange Commission and distribute to stockholders a proxy statement which conforms to all securities laws and complies with the manner set forth in terms and conditions of this Agreement, will be validly issued, fully paid Agreement and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights, other hold its 2006 Annual Meeting no later than any rights that have been complied with or waivedis reasonably practicable.
(f) Assuming On or prior to the accuracy of the representations and warranties of the Investor set forth in this Agreement2007 Annual Meeting, the issuance of the Shares pursuant to this Agreement are exempt from the registration requirements of the Securities Act and the Shares will Company shall 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) 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 if the Exchange does not take place no press release will be required. The Company hereby acknowledges and agrees that any 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.
(h) The Company is responsible for paying all of amend 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.
Bylaws to: (i) The Company willmodify any of the terms or conditions, upon request, execute and deliver any additional documents deemed by including the Trustee or the transfer agent number of directors to be reasonably necessary to complete the transactions contemplated by this Agreement.
greater than nine (j9), of Section 3.02(a) The Company and each (Number, Classes, Terms of its subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X promulgated under the Securities Act (“subsidiaries”) 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, Office); (ii) prevent or materially interfere with consummation modify any of the transactions contemplated by this Agreementmaterial terms or conditions, including the timing conditions, of Section 2.13 (Shareholder Proposals); or (iii) result in modify any of the delisting material terms or conditions, including timing conditions, of Shares from NASDAQSection 2.14 (Notice of Stockholder Nominees) except with the consent of either Xxxx X. Xxxxxx or Xxxxx Xxxxxxxx, or either of their successors elected pursuant to Section 2(a) above.
Appears in 1 contract
