REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. The Company represents and warrants to, and agrees with, the Underwriters, as of the date hereof and as of each Closing Date, as follows: (a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware. The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have or be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”). (b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary. (c) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity. (d) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: (i) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; (ii) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; or (iii) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effect. (e) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect. (f) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance. (g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, are duly authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company. (h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X. (i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against the Company or any of its subsidiaries (which are currently pending) by any Taxing authority in connection with Tax Returns or Taxes of the Company or its subsidiaries, and no waivers of statutes of limitation with respect to the assessment or payment of Taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxes” mean all federal, state, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxes.
Appears in 2 contracts
Samples: Underwriting Agreement (HighPeak Energy, Inc.), Underwriting Agreement (HighPeak Energy, Inc.)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the several Underwriters, as of the date hereof and as of each the Closing DateDate (as defined in Section 4(b) below), except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation or other entity in good standing under the laws of its jurisdiction of organization. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority (corporate or otherwise) to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is or other entity in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of businessits business makes such qualification necessary, except where the failure to so qualify or be in good standing would not have or reasonably be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”). The Company’s subsidiaries are listed on Schedule III attached hereto.
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and the Warrants and to authorize, issue and sell the Shares Securities as contemplated by this Agreement. This Agreement has and the Warrants have been duly authorized, and validly authorized by the Company and when executed and delivered by the Company, and constitutes a will constitute the valid, legal and binding obligation obligations of the Company, enforceable against the Company in accordance with its their respective terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the Warrants by the Company and the consummation by the Company of the transactions herein and therein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent such breach, violation or default is not reasonably likely to have a Material Adverse Effect, (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) (a “Default Acceleration Event”) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of or by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent that such conflict, default or Default Acceleration Event is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate Certificate of incorporation Incorporation, as amended, or bylawsby-laws, each as are presently amended.
(iv) Neither the Company nor any of its subsidiaries is in effectviolation, exceptbreach or default under its Certificate of Incorporation, as amended, by-laws, as amended, or other equivalent organizational or governing documents, except where the violation, breach or default in the case of clauses (i) and (ii) above, as would a subsidiary of the Company is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All No consents, approvals, orders, authorizations and or filings are required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or madeand the Warrants and the issue and sale of the Securities, other than except (A) the registration under the Securities Act of the Securities, (B) such consents, approvals, orders authorizations, registrations or qualifications as may be required under state or foreign securities or Blue Sky laws and the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) in connection with the purchase and distribution of the Securities by the several Underwriters, (C) the necessary filings and approvals from the NASDAQ Capital Market to list the Shares and the Warrant Shares, and (D) such consents, approvals, orders, authorizations and filings the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(f) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, are duly authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against the Company or any of its subsidiaries (which are currently pending) by any Taxing authority in connection with Tax Returns or Taxes of the Company or its subsidiaries, and no waivers of statutes of limitation with respect to the assessment or payment of Taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxes” mean all federal, state, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxes.
Appears in 2 contracts
Samples: Underwriting Agreement (Heat Biologics, Inc.), Underwriting Agreement (Heat Biologics, Inc.)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the Underwriters, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization reorganization, moratorium, fraudulent conveyance or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effectby laws.
(eiv) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation, by-laws or other equivalent organizational or governing documents.
(v) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely likely, individually or in the aggregate, to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or other rights restricted stock to subscribe for or to purchasedirectors, or any restriction upon employees and consultants in the voting or transfer of, any shares ordinary course of Common Stock business pursuant to equity incentive plans described in the Company’s certificate Registration Statement (excluding exhibits thereto) and the Prospectus, and except as contemplated by this Agreement, since the respective dates as of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Shares have been duly authorized and, when issued, will be validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or any subsidiary of the Companysimilar rights.
(hvii) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensions, and (ii) each hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements, except . Except as disclosed in writing to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims Underwriters, (A) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (B) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which, individually or in the aggregate, is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus as being owned by them, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company and its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company, its subsidiaries nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xviii) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to the Underwriters or the sale of the Shares hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect the Underwriters’ compensation, as determined by the Financial Industry Regulatory Authority (“FINRA”).
(xx) Except as disclosed to the Underwriters in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxi) None of the net proceeds of the offering will be paid by the Company to any participating FINRA member or any affiliate or associate of any participating FINRA member, except as specifically authorized herein.
(xxii) To the Company’s knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of any class of the Company’s securities (with beneficial ownership determined pursuant to Rule 13d-3 under the Exchange Act) or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise the Representative and the Underwriters’ counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect of Taxesthe offering.
(xxiii) Other than the Underwriters, no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the transactions contemplated hereby.
Appears in 2 contracts
Samples: Underwriting Agreement (Zoo Entertainment, Inc), Underwriting Agreement (Zoo Entertainment, Inc)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees withwith the several Underwriters, except as set forth in the Registration Statement, the Underwriters, as Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s charter or by-laws.
(iv) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation or bylaws, each as are presently in effectby-laws, except, in the case of clauses (i) and (ii) aboveany subsidiary of the Company, as would where the violation, breach or default is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 issuances of options or restricted stock in the ordinary course of business, and other than in respect of the Company’s Annual Report on Form 10-K for Shares, since the year ended December 31, 2020, or respective dates as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term of which information is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included provided in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company any shares of the capital stock of the Company. The Shares, when issued and duly paid for as provided herein, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and be free of preemptive, registration or similar rights.
(vii) Each of the Company and its subsidiaries has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to the date hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its subsidiaries has paid all taxes (as hereinafter defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed against the Company or such respective subsidiary other than as described or reflected in the Registration Statement. The provisions for taxes payable, if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements, except . Except as disclosed in writing to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims Underwriters, (A) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (B) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean means all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, (A) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (B) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (C) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to any stock split described in the Registration Statement or due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business or the issuance of shares of common stock to directors in lieu of their director fees), (D) there has not been any material change in the Company’s long-term or short-term debt, and (E) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or its subsidiaries is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which, if resolved adversely to the Company is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company and its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any written notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company, its subsidiaries nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xviii) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) To the Company’s knowledge, there are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to the Underwriter or the sale of the Securities hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect the Underwriter’s compensation, as determined by FINRA.
(xx) Except as disclosed to the Representative in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (A) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (B) any FINRA member, or (C) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxi) None of the net proceeds of the offering will be paid by the Company to any participating FINRA member or any affiliate or associate of any participating FINRA member, except as specifically authorized herein.
(xxii) To the Company’s knowledge, no (A) officer or director of the Company or its subsidiaries, (B) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (C) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise the Underwriters and their counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect the offering.
(xxiii) Other than the Underwriters, no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the transactions contemplated hereby.
(xxiv) The Company has not sold, issued or distributed any shares of TaxesCommon Stock during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A, Regulation D or Regulation S under the Securities Act, other than shares of Common Stock issued pursuant to employee benefit plans, qualified stock option plans, other employee compensation plans, in lieu of director fees or pursuant to outstanding convertible securities, options, rights or warrants.
Appears in 2 contracts
Samples: Underwriting Agreement (NV5 Global, Inc.), Underwriting Agreement (NV5 Holdings, Inc.)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the UnderwritersUnderwriter, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Company has been is duly incorporated and is organized, validly existing as a corporation and in good standing under the laws of the State jurisdiction of Delaware. The Company has the corporate its organization, with all requisite power and authority to own, lease and operate its properties and to conduct carry on its business as currently being carried on now conducted and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and . Except as is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have or be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary , each of the subsidiaries of the Company has been is duly incorporated or organized and is organized, validly existing as a corporation or limited liability company and in good standing under the laws of the State jurisdiction of Delawareits organization, has corporate or similar with all requisite power and authority to own, lease and operate its properties and to conduct carry on its business as currently being carried on now conducted and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus Prospectus. The Company and each of its subsidiaries is duly qualified to transact do business and is in good standing in, in each jurisdiction in which such qualification it conducts business except where the failure so to qualify is requirednot reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries is in violation of its certificate of incorporation, whether by reason of the ownership of property by-laws or the conduct of businessother equivalent organizational or governing documents, except where the failure violation, in the case of a subsidiary of the Company, is not reasonably likely to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, . This Agreement constitutes the valid and constitutes a valid, legal and legally binding obligation of the Company, enforceable against it in accordance with its terms, except as rights subject to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by (A) applicable bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or other similar laws of general application relating to or affecting the enforcement of creditors’ rights of creditors generally and subject to generally, (B) general principles of equityequity and (C) with respect to the enforcement of any rights to indemnity and contribution, securities laws and principles of public policy.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated hereby will not: not (iA) conflict with, or result in a breach or any violation of any provisions of the terms and provisions ofCompany’s charter, or constitute a default under, any law, order, rule or regulation to which the Company bylaws or any subsidiary is subjectother organizational or charter document, or by which any property or asset of the Company or any subsidiary is bound or affected; (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation (evidencing a Company or subsidiary debt or otherwise) or other understanding to which the Company or any subsidiary is a party of or by which any property or asset of the Company or any subsidiary is bound bound, or affected; , except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any applicable law to which the Company or a subsidiary is subject, or by which any property or asset of the terms and provisions of, Company or constitute a default under, the Company’s certificate of incorporation subsidiary is bound or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effectaffected.
(eiv) The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and to issue and sell the Shares to the Underwriter in accordance with the terms hereof. All consents, approvals, orders, orders and authorizations and filings required on the part of the Company and or its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, have been or will be issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or restricted stock in the ordinary course of business, since the respective dates as of which information is provided in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, or options, warrants, agreements, contracts or other rights to subscribe for purchase or to purchase, or any restriction upon acquire from the voting or transfer of, Company any shares of the capital stock of the Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights.
(vi) The Company and its subsidiaries have timely filed all tax returns required to be filed, which returns are true and correct in all material respects, and the Company and its subsidiaries have paid all taxes (including any assessments, fines or penalties) required to be paid by them, except for any such taxes, assessments, fines or penalties currently being contested in good faith and as is not reasonably likely to result in a Material Adverse Effect.
(vii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither the Company nor any of its subsidiaries has entered into any transactions other than those in the ordinary course of business with respect to the Company and its subsidiaries considered as one enterprise, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding Common Stock pursuant Shares due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s certificate existing stock awards plan or any new grants other than in the ordinary course of incorporation or bylawsbusiness), each as presently (d) there has not been any material increase in effectthe Company’s indebtedness, or (e) there has not been the occurrence of any agreement Material Adverse Effect..
(viii) (A) there is no private or other instrument governmental action, suit, proceeding, claim, arbitration or investigation pending before any agency, court or tribunal, foreign or domestic, or, to which the knowledge of the Company is a party or by which any of its subsidiaries, threatened against the Company or any of its properties or any of its officers or directors (in their capacities as such), which is boundreasonably likely to result in a Material Adverse Effect, and (B) there is no judgment, decree or order against the Company, or, to the knowledge of the Company, any of its respective directors or officers (in their capacities as such) relating to the business of the Company, the presence of which is reasonably likely to result in a Material Adverse Effect. Except To the Company’s knowledge, no circumstances exist that could form a valid basis for a claim against the Company as disclosed a result of the conduct of the Company’s business that is reasonably likely to result in a Material Adverse Effect.
(ix) Each of the Company and its subsidiaries has, and is in compliance with, all franchises, licenses, certificates and other authorizations (“Permits”) from any government or governmental agency, department, or body that are currently necessary for the operation of the business of the Company and its subsidiaries as currently conducted, except where the failure to possess or comply with any such Permits is not reasonably likely to result in a Material Adverse Effect.
(x) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there Prospectus as being owned by them that are no options, warrants, agreements, Contracts or other rights in existence material to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary business of the Company.
(h) Except for the entities set forth on Exhibit 21.1 , in each case free and clear of the Company’s Annual Report on Form 10-K for the year ended December 31all liens, 2020claims, security interests, other encumbrances or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiarydefects, except for such Taxes, if any, which those that are being contested in good faith and as not reasonably likely to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material claims have been made against respect with the conduct of the business of the Company or its subsidiaries.
(xi) Each of the Company and its subsidiaries owns or possesses sufficient rights to use all patents, patent rights, trademarks, copyrights, licenses, inventions, trade secrets, trade names and know-how (collectively, “Intellectual Property”) that are necessary for the conduct of its business as now conducted except where the failure to currently own or possess them is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice of, or has any knowledge of, any infringement of asserted rights of a third party with respect to any Intellectual Property that is reasonably likely to result in a Material Adverse Effect and neither the Company nor any of its subsidiaries has received any notice of any infringement rights by a third party with respect to any Intellectual Property that is reasonably likely to result in a Material Adverse Effect.
(xii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to, any statute, law or regulation with respect to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder that are effective with respect to the Company and its subsidiaries on the date of this Agreement, (D) the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974, as amended and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiii) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (which are “OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently pendingsubject to any U.S. sanctions administered by OFAC.
(xiv) by any Taxing authority The Company carries, or is covered by, insurance in connection such amounts and covering such risks as the Company reasonably deems adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xv) No labor dispute with Tax Returns or Taxes the employees of the Company or any of its subsidiariessubsidiaries exists or, and no waivers of statutes of limitation with respect to the assessment knowledge of the Company, is imminent that has resulted in or payment of Taxes have been given is reasonably likely to result in a Material Adverse Effect.
(xvi) Other than as contemplated by this Agreement or requested from as disclosed to the Underwriter in writing, the Company has not incurred any liability for any finder’s or its subsidiaries that are currently broker’s fee or agent’s commission in force. The term “Taxes” mean all federal, state, local, non-U.S., connection with the execution and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties delivery of this Agreement or other taxes, fees, assessments, or charges the consummation of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxestransactions contemplated hereby.
Appears in 1 contract
Samples: Underwriting Agreement (Imax Corp)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, and agrees with, the Underwriters, except as set forth in the Registration Statement, the Time of Sale Disclosure Package or the date hereof and as of each Closing DateFinal Prospectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described described, as of the respective dates as of which information is provided, in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of businessits business makes such qualification necessary, except in each case, where the failure to be so qualify or be in good standing qualified would not have or be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, financial condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its the Company’s ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the corporate power and authority to enter into this Agreement and to issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws law and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate articles of incorporation or bylawsby-laws, each as are presently amended, except in effectthe case of clauses (A) and (B), to the extent not reasonably likely to result in a Material Adverse Effect.
(iv) Neither the Company nor any of its subsidiaries is in violation, breach or default under its articles of incorporation, by-laws or other equivalent organizational or governing documents, each as amended, except, in the case of clauses (i) and (ii) abovea subsidiary of the Company, as would to the extent the violation, breach or default is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than (A) any such consents, approvals, orders, authorizations and filings to be obtained or made after the date of this Agreement under the Securities Act, the Exchange Act, the Rules and Regulations and applicable state and foreign securities laws in connection with the offer and sale of the Shares, (B) the listing of the Shares on NASDAQ, and (C) such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in material compliance with all federal and state applicable securities laws, were not issued in violation and, as of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy the respective dates as of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized andinformation is provided, when issued, delivered and paid for conform in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms all material respects to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 issuances of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, options or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital restricted stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiariesordinary course of business and the Shares, would constitute a “significant subsidiary” since the respective dates as such term of which information is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included provided in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company any shares of the capital stock of the Company. The Shares, when issued and duly paid for as provided herein, will be duly authorized and validly issued, fully paid and nonassessable, and will be free of preemptive, registration or similar rights.
(vii) Each of the Company and its subsidiaries has (i) filed all accrued and unpaid Taxes, whether or not disputed, for all Tax periods returns (as hereinafter defined) required to be filed with taxing authorities prior to the date hereof or has duly obtained extensions of time for the filing thereof, and including the dates (ii) paid all taxes (as hereinafter defined) shown as due and payable on such returns that were filed, in each of such consolidated financial statementscases (i) and (ii), except (A) with respect to any taxes that are being contested in good faith and (B) to the extent of any inadequacy that would not reasonably likely to result in a Material Adverse Effect. No Except as disclosed to the Underwriters or their legal counsel, (i) no material claims issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect to taxes.
(viii) Since the respective dates as of Taxeswhich information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any material change in the number of outstanding shares of the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance, repurchase or forfeiture of restricted stock awards or restricted stock units under the Company’s existing stock awards plans, or any new grants thereof in the ordinary course of business, or the issuance of the Shares), (d) there has not been any material change in the outstanding principal amount of the Company’s long-term or short-term debt, and (e) there has not been any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, in each case, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described, as of the respective dates as of which information is provided, in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company and its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) that are material to the business of the Company and its subsidiaries as currently carried on and as described, as of the respective dates as of which information is provided, in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries of Intellectual Property will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not knowingly directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company carries, or is covered by, insurance in such amounts and covering such risks as the Company believes is reasonable for the conduct of its business and the value of its properties.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, except for any such dispute that is not reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xviii) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) Except for this Agreement and the engagement letter, dated July 23, 2015, neither the Company nor any of its subsidiaries is party to any arrangements or understandings for services in the nature of a finder’s, consulting, underwriting or origination fee for the offer and sale of the Shares hereunder, and neither the Company nor any of its subsidiaries has paid any such fee with respect to the introduction of the Company to the Underwriters or for the offer and sale of the Shares hereunder.
(xx) [Intentionally omitted.]
(xxi) To the knowledge of the Company, there are no beneficial owners of 5% or more of the Company’s Common Stock, except for those individuals or entities that have reported such information on Schedules 13D and 13G filed with the Commission. The Company will advise the Representative and its counsel if it becomes aware other than due to notice upon filing of a Schedule 13D or 13G, prior to the Closing Date, that any beneficial owner of 5% or more of the Company’s Common Stock (other than Renaissance Technologies LLC) is or becomes a member of FINRA or an affiliate or associated person of a FINRA member.
(xxii) The Company has not issued any unregistered equity securities to any person during the 180-day period immediately preceding the date that the Company filed the Registration Statement with the Commission.
(xxiii) The Company does not have any current intention to direct any proceeds of the offering and sale of the Shares hereunder to a member of FINRA, except as provided herein.
(xxiv) Other than the Underwriters, the Company has not appointed or granted any right to any person to act as an underwriter or financial advisor to the Company with respect to the offer and sale of the Shares hereunder.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, Wellington, except as set forth in the UnderwritersRegistration Statement, as the Time of Sale Disclosure Package and the date hereof and as of each Closing DateFinal Prospectus, as follows:
(ai) The Company has and each of its subsidiaries have been duly incorporated organized and each is validly existing as a corporation in good standing under the laws of its respective jurisdiction of incorporation, the State Company and each of Delaware. The Company its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be reasonably would likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (ix) result in a breach or violation of any of the material terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiy) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , or (iiiz) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effect.
(eiv) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is would not reasonably likely to result in have a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or other rights to subscribe for or to purchaserestricted stock in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Shares, when issued pursuant to this Agreement, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and free of preemptive, registration or any subsidiary of the Companysimilar rights.
(hvi) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange ActOther than its subsidiaries, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.entity.
(ivii) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries has filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereofhereof or has duly obtained extensions of time for the filing thereof. Except as disclosed to Wellington in writing, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the consolidated financial statements filed with or included in as part of the Registration StatementStatement are, to the Time of Sale Disclosure Package or the Final Prospectus are Company’s Knowledge, sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements. Except as disclosed in writing to Wellington, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims (x) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (y) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, (v) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, or as disclosed in its filings with the Commission, (w) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock, (x) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding Shares due to the issuance of Shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (y) there has not been any material change in the Company’s long-term or short-term debt, and (z) to the Company’s Knowledge, there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the Knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any of the material property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which would result in a Material Adverse Effect.
(x) To the Company’s Knowledge, the Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them would not result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that would not result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company or its subsidiaries.
(xii) To the Company’s Knowledge, the Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. To the Knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee would not result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) To the Company’s Knowledge, the Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (v) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (w) except as discussed in its filings with the Commission, any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (x) except as disclosed in the Company’s filings with the Commission, the Sxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (y) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (z) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance would not result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the Knowledge of the Company, any director, officer, material employee, or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will use reasonable efforts to not directly or indirectly use the proceeds of the Offering, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Knowledge of the Company, is imminent that would result in a Material Adverse Effect.
(xvii) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation, bylaws or other equivalent organizational or governing documents, except where the violation would not result in a Material Adverse Effect.
(xviii) Neither the Company, its subsidiaries nor, to its Knowledge, any other party is in violation, breach or default of any Contract that would result in a Material Adverse Effect.
(xix) No supplier, customer, distributor or sales agent of the Company has notified the Company in writing that it intends to discontinue or decrease the rate of business done with the Company, except where such discontinuance or decrease would not result in a Material Adverse Effect.
(xx) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to Wellington or the sale of the Shares hereunder or, to the Knowledge of the Company, any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect Wellington’s compensation, as determined by FINRA.
(xxi) Except as disclosed to Wellington in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (x) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (y) any FINRA member, or (z) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxii) To the Company’s Knowledge, no (x) officer or director of the Company or its subsidiaries, (y) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (z) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise Wellington and its counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect the Offering. As disclosed in the Company’s filings with the Commission, Capital Bank-Gxxxx Gruppe AG (“Capital Bank”), a banking institution regulated by the banking regulations of TaxesAustria, has represented to the Company that as of May 14, 2021, (i) it holds of record as a nominee for, and as an agent of, certain accredited investors, 2,049,210 shares of the Company’s Common Stock, (ii) none of the Common Stock held by Capital Bank for the account of any single investor represents more than 4.9% of the Company’s Common Stock, and (iii) as far as stocks held by such investors in accounts with Capital Bank, none of such investors act together as a group or otherwise act in concert for the purpose of voting on matters subject to the vote of the Company’s stockholders or for purpose of disposition or investment of such stock.
(xxiii) Other than Wellington, no person has the right to act as a placement agent, underwriter or as a financial advisor in connection with the sale of the Shares contemplated hereby.
Appears in 1 contract
Samples: Placement Agency Agreement (Perma Fix Environmental Services Inc)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, Xxxx, except as set forth in the UnderwritersRegistration Statement, as the Time of Sale Disclosure Package and the date hereof and as of each Closing DateFinal Prospectus, as follows:
(ai) The Company and each of its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State its jurisdiction of Delawareincorporation. The Company and each of its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of (x) the Company and its subsidiaries, taken as a whole or (y) the Company and its subsidiaries, giving pro forma effect to the Acquisition Transactions, taken as a whole, or in its the Company’s ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and the Acquisition Agreements and to sell perform the Shares as transactions contemplated by this Agreementhereby and thereby. This Agreement has and the Acquisition Agreements have been duly authorized, executed and delivered by the Company, and constitutes constitute a valid, legal and binding obligation of the Company, enforceable in accordance with its their terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the Acquisition Agreements and the consummation of the Acquisition Transactions and the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effect.
(eiv) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the Shares and the issuances of options or other rights to subscribe for or to purchaserestricted stock in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and free of preemptive, registration or any subsidiary of the Companysimilar rights.
(hvi) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the The Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.entity.
(ivii) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries has filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensions, and (ii) each hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements. Except as disclosed in writing to Xxxx, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims (i) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Excluding the Debt Financing and except as would not be reasonably likely to have a Material Adverse Effect, since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any other adverse event, provided, however, that none of the following, in and of itself or themselves shall constitute a Material Adverse Effect: (i) changes in the economy or financial markets generally in North America, Europe or Asia or changes that are the result of acts of war or terrorism, (ii) changes that are the result of factors generally affecting the industries in which the Company operates provided that no such factors shall have a disproportionate impact on the Company, (iii) a decline in the price of the Common Stock on NASDAQ, or any other trading market that the Common Stock is traded on; provided, the exception in this clause (iii) shall not prevent or otherwise affect a determination that any change, effect, circumstance or development underlying such decline has resulted in, or contributed to, a Material Adverse Effect provided, further, that none of the foregoing shall affect any of the conditions of Xxxx’x obligations set forth in Section 8.
(ix) There is not pending or, to the Knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company or its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. To the Knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the Knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the Offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation, bylaws or other equivalent organizational or governing documents, except where the violation is not reasonably likely to result in a Material Adverse Effect.
(xviii) Neither the Company, its subsidiaries nor, to its Knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xix) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xx) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to Xxxx or the sale of the Shares hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect Xxxx’x compensation, as determined by FINRA.
(xxi) Except as disclosed to Xxxx in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxii) To the Company’s Knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise Xxxx and its counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect the Offering.
(xxiii) Other than Xxxx, no person has the right to act as a placement agent, underwriter or as a financial advisor in connection with the sale of Taxesthe Shares contemplated hereby.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, Rxxx, except as set forth in the UnderwritersRegistration Statement, as the Time of Sale Disclosure Package and the date hereof and as of each Closing DateFinal Prospectus, as follows:
(ai) The Company and each of its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State its jurisdiction of Delawareincorporation. The Company and each of its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary ; provided that none of the Company has been duly incorporated or organized following alone shall be deemed, in and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delawareitself, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have constitute a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid : (x) a change in the case market price or trading volume of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement common stock or (y) changes in general economic conditions or changes affecting the “Credit Agreement”), dated December 17, 2020, among industry in which the Company operates generally (as opposed to Company-specific changes) so long as such changes do not have a materially disproportionate effect on the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, except in the case of each of clauses (iA) and or (ii) aboveB), such as would not have or reasonably be expected to have result in a Material Adverse Effect.
(eiv) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options, restricted stock or other rights to subscribe for or to purchaserestricted stock units in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Securities, when issued, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and free of preemptive, registration or any subsidiary of the Companysimilar rights.
(hvi) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the The Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.entity.
(ivii) Except as for matters that would not, individually or in the aggregate, have or reasonably be expected to have result in a Material Adverse Effect, (ia) each of the Company and its subsidiaries has filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereofhereof or has duly obtained extensions of time for the filing thereof, subject to permitted extensions, and (iib) each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except and (c) the provisions for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements. Except as disclosed in writing to Rxxx, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims (i) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus or otherwise described therein, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the Knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and valid title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company or its subsidiaries or which would not reasonably be expected to have a Material Adverse Effect.
(xii) To the Company’s Knowledge, the Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and which the failure to so have would have a Material Adverse Effect. To the Knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Sxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the Knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the Offering of the Securities contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as the Company reasonably believes is adequate for the conduct of its business and the value of its properties and as is customary for companies of similar size engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation, bylaws or other equivalent organizational or governing documents, except where the violation is not reasonably likely to result in a Material Adverse Effect.
(xviii) Neither the Company, its subsidiaries nor, to its Knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xix) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such discontinuance or decrease is not reasonably likely to result in a Material Adverse Effect.
(xx) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to Rxxx or the sale of the Securities hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect Rxxx’x compensation, as determined by FINRA.
(xxi) Except for payments made to MLV & Co. LLC. (“MLV”) pursuant to the Company’s At Market Issuance Sales Agreement, dated April 18, 2013, with MLV or as disclosed to Rxxx in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxii) To the Company’s Knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise Rxxx and its counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect the Offering.
(xxiii) Other than Rxxx, no person has the right to act as a placement agent, underwriter or as a financial advisor in connection with the sale of Taxesthe Securities contemplated hereby.
Appears in 1 contract
Samples: Placement Agency Agreement (Acura Pharmaceuticals, Inc)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the UnderwritersCo-Placement Agents, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateFinal Prospectus, as follows:
(ai) The Company and each of its subsidiaries has been duly incorporated organized and is validly existing as a corporation or other entity in good standing under the laws of the State its jurisdiction of Delawareincorporation or organization. The Company and each of its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary ; provided that none of the Company has been duly incorporated or organized following alone shall be deemed, in and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delawareitself, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have constitute a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid : (x) a change in the case market price or trading volume of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement common stock or (y) changes in general economic conditions or changes affecting the “Credit Agreement”), dated December 17, 2020, among industry in which the Company operates generally (as opposed to Company-specific changes) so long as such changes do not have a materially disproportionate effect on the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, except in the case of each of clauses (i) and (ii) above), such as would not have or reasonably be expected to have result in a Material Adverse Effect.
(eiv) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options, restricted stock units or restricted stock in the ordinary course of business, since the respective dates as of which information is provided in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus or otherwise as disclosed therein, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to subscribe for purchase or to purchase, or any restriction upon acquire from the voting or transfer of, Company any shares of Common Stock pursuant to the capital stock of the Company’s certificate . The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and free of incorporation preemptive, registration or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. similar rights.
(vi) Except as disclosed described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.entity.
(ivii) Except as for matters that would not, individually or in the aggregate, have or reasonably be expected to have result in a Material Adverse Effect, (ia) each of the Company and its subsidiaries has filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereofhereof or has duly obtained extensions of time for the filing thereof, subject to permitted extensions, and (iib) each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except and (c) the provisions for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements. Except as disclosed in writing to each Placement Agent, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims (i) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus or otherwise disclosure therein, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the Knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and valid title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company or its subsidiaries or which would not reasonably be expected to have a Material Adverse Effect.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. To the Knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the Knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the Offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation, bylaws or other equivalent organizational or governing documents, except where the violation is not reasonably likely to result in a Material Adverse Effect.
(xviii) Neither the Company, its subsidiaries nor, to its Knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xix) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xx) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to either Placement Agent or the sale of the Shares hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect the Co-Placement Agents’ compensation, as determined by FINRA.
(xxi) Except as disclosed to each Placement Agent in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxii) To the Company’s Knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise each Placement Agent and their respective counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect the Offering.
(xxiii) Other than the Co-Placement Agents, no person has the right to act as a placement agent, underwriter or as a financial advisor in connection with the sale of Taxesthe Shares contemplated hereby.
Appears in 1 contract
Samples: Co Placement Agency Agreement (Uranium Resources Inc /De/)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the UnderwritersUnderwriter, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effectby-laws.
(eiv) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or other rights to subscribe for or to purchaserestricted stock in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or any subsidiary of the Companysimilar rights.
(hvi) Except for Advanced Electric Motors, Inc., Advanced Automation Group, LLC and the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or PRC Entities (as subsequently disclosed defined in a Current Report on Form 8-K filed under the Exchange Act4(a)(iii) below), the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.entity.
(ivii) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensions, and (ii) each hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements, except . Except as disclosed in writing to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims Underwriter, (i) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect to taxes.
(viii) Since the respective dates as of Taxeswhich information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material adverse change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. To the knowledge of the Company, the property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company and its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation, by-laws or other equivalent organizational or governing documents, except where the violation is not reasonably likely to result in a Material Adverse Effect.
(xviii) Neither the Company, its subsidiaries nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xix) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xx) Other than the Underwriter, no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the transactions contemplated hereby.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the UnderwritersUnderwriter, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Company has been is duly incorporated and is organized, validly existing as a corporation and in good standing under the laws of the State jurisdiction of Delaware. The Company has the corporate its organization, with all requisite power and authority to own, lease and operate its properties and to conduct carry on its business as currently being carried on now conducted and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and . Except as is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have or be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary , each of the subsidiaries of the Company has been is duly incorporated or organized and is organized, validly existing as a corporation or limited liability company and in good standing under the laws of the State jurisdiction of Delawareits organization, has corporate or similar with all requisite power and authority to own, lease and operate its properties and to conduct carry on its business as currently being carried on now conducted and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus Prospectus. The Company and each of its subsidiaries is duly qualified to transact do business and is in good standing in, in each jurisdiction in which such qualification it conducts business except where the failure so to qualify is requirednot reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries is in violation of its certificate of incorporation, whether by reason of the ownership of property by-laws or the conduct of businessother equivalent organizational or governing documents, except where the failure violation, in the case of a subsidiary of the Company, is not reasonably likely to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, . This Agreement constitutes the valid and constitutes a valid, legal and legally binding obligation of the Company, enforceable against it in accordance with its terms, except as rights subject to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by (A) applicable bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or other similar laws of general application relating to or affecting the enforcement of creditors’ rights of creditors generally and subject to generally, (B) general principles of equityequity and (C) with respect to the enforcement of any rights to indemnity and contribution, securities laws and principles of public policy.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated hereby will not: not (iA) conflict with, or result in a breach or any violation of any provisions of the terms and provisions ofCompany’s charter, or constitute a default under, any law, order, rule or regulation to which the Company bylaws or any subsidiary is subjectother organizational or charter document, or by which any property or asset of the Company or any subsidiary is bound or affected; (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation (evidencing a Company or subsidiary debt or otherwise) or other understanding to which the Company or any subsidiary is a party of or by which any property or asset of the Company or any subsidiary is bound bound, or affected; , except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any applicable law to which the Company or a subsidiary is subject, or by which any property or asset of the terms and provisions of, Company or constitute a default under, the Company’s certificate of incorporation subsidiary is bound or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effectaffected.
(eiv) The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and to issue and sell the Shares to the Underwriter in accordance with the terms hereof. All consents, approvals, orders, orders and authorizations and filings required on the part of the Company and or its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, have been or will be issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or restricted stock in the ordinary course of business, since the respective dates as of which information is provided in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, or options, warrants, agreements, contracts or other rights to subscribe for purchase or to purchase, or any restriction upon acquire from the voting or transfer of, Company any shares of the capital stock of the Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights.
(vi) The Company and its subsidiaries have timely filed all tax returns required to be filed, which returns are true and correct in all material respects, and the Company and its subsidiaries have paid all taxes (including any assessments, fines or penalties) required to be paid by them, except for any such taxes, assessments, fines or penalties currently being contested in good faith and as is not reasonably likely to result in a Material Adverse Effect.
(vii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither the Company nor any of its subsidiaries has entered into any transactions other than those in the ordinary course of business with respect to the Company and its subsidiaries considered as one enterprise, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding Common Stock pursuant Shares due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s certificate existing stock awards plan or any new grants other than in the ordinary course of incorporation or bylawsbusiness), each as presently (d) there has not been any material increase in effectthe Company’s indebtedness, or (e) there has not been the occurrence of any agreement Material Adverse Effect.
(viii) (A) there is no private or other instrument governmental action, suit, proceeding, claim, arbitration or investigation pending before any agency, court or tribunal, foreign or domestic, or, to which the knowledge of the Company is a party or by which any of its subsidiaries, threatened against the Company or any of its properties or any of its officers or directors (in their capacities as such), which is boundreasonably likely to result in a Material Adverse Effect, and (B) there is no judgment, decree or order against the Company, or, to the knowledge of the Company, any of its respective directors or officers (in their capacities as such) relating to the business of the Company, the presence of which is reasonably likely to result in a Material Adverse Effect. Except To the Company’s knowledge, no circumstances exist that could form a valid basis for a claim against the Company as disclosed a result of the conduct of the Company’s business that is reasonably likely to result in a Material Adverse Effect.
(ix) Each of the Company and its subsidiaries has, and is in compliance with, all franchises, licenses, certificates and other authorizations (“Permits”) from any government or governmental agency, department, or body that are currently necessary for the operation of the business of the Company and its subsidiaries as currently conducted, except where the failure to possess or comply with any such Permits is not reasonably likely to result in a Material Adverse Effect.
(x) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there Prospectus as being owned by them that are no options, warrants, agreements, Contracts or other rights in existence material to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary business of the Company.
(h) Except for the entities set forth on Exhibit 21.1 , in each case free and clear of the Company’s Annual Report on Form 10-K for the year ended December 31all liens, 2020claims, security interests, other encumbrances or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiarydefects, except for such Taxes, if any, which those that are being contested in good faith and as not reasonably likely to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material claims have been made against respect with the conduct of the business of the Company or its subsidiaries.
(xi) Each of the Company and its subsidiaries owns or possesses sufficient rights to use all patents, patent rights, trademarks, copyrights, licenses, inventions, trade secrets, trade names and know-how (collectively, “Intellectual Property”) that are necessary for the conduct of its business as now conducted except where the failure to currently own or possess them is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice of, or has any knowledge of, any infringement of asserted rights of a third party with respect to any Intellectual Property that is reasonably likely to result in a Material Adverse Effect and neither the Company nor any of its subsidiaries has received any notice of any infringement rights by a third party with respect to any Intellectual Property that is reasonably likely to result in a Material Adverse Effect.
(xii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to, any statute, law or regulation with respect to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder that are effective with respect to the Company and its subsidiaries on the date of this Agreement, (D) the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974, as amended and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiii) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (which are “OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently pendingsubject to any U.S. sanctions administered by OFAC.
(xiv) by any Taxing authority The Company carries, or is covered by, insurance in connection such amounts and covering such risks as the Company reasonably deems adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xv) No labor dispute with Tax Returns or Taxes the employees of the Company or any of its subsidiariessubsidiaries exists or, and no waivers of statutes of limitation with respect to the assessment knowledge of the Company, is imminent that has resulted in or payment of Taxes have been given is reasonably likely to result in a Material Adverse Effect.
(xvi) Other than as contemplated by this Agreement or requested from as disclosed to the Underwriter in writing, the Company has not incurred any liability for any finder’s or its subsidiaries that are currently broker’s fee or agent’s commission in force. The term “Taxes” mean all federal, state, local, non-U.S., connection with the execution and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties delivery of this Agreement or other taxes, fees, assessments, or charges the consummation of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxestransactions contemplated hereby.
Appears in 1 contract
Samples: Underwriting Agreement (Imax Corp)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the Underwriters, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization reorganization, moratorium, fraudulent conveyance or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effectby laws.
(eiv) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation, by-laws or other equivalent organizational or governing documents.
(v) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely likely, individually or in the aggregate, to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or other rights restricted stock to subscribe for or to purchasedirectors, or any restriction upon employees and consultants in the voting or transfer of, any shares ordinary course of Common Stock business pursuant to equity incentive plans described in the Company’s certificate Registration Statement (excluding exhibits thereto) and the Prospectus, and except as contemplated by this Agreement, since the respective dates as of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Shares have been duly authorized and, when issued, will be validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or any subsidiary of the Companysimilar rights.
(hvii) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensions, and (ii) each hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements, except . Except as disclosed in writing to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims Underwriters, (A) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (B) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which, individually or in the aggregate, is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus as being owned by them, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company and its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company, its subsidiaries nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xviii) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to the Underwriters or the sale of the Shares hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect the Underwriters’ compensation, as determined by the Financial Industry Reguatory Authority (“FINRA”).
(xx) Except as disclosed to the Underwriters in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxi) None of the net proceeds of the offering will be paid by the Company to any participating FINRA member or any affiliate or associate of any participating FINRA member, except as specifically authorized herein.
(xxii) To the Company’s knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of any class of the Company’s securities (with beneficial ownership determined pursuant to Rule 13d-3 under the Exchange Act) or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise the Representative and the Underwriters’ counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect of Taxesthe offering.
(xxiii) Other than the Underwriters, no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the transactions contemplated hereby.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the Underwriters, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary of the PRC Entities (as defined in Section 4(a)(i) hereof), is subject, or by which any property or asset of the Company or any subsidiary of the PRC Entities is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary of the PRC Entities, is a party of or by which any property or asset of the Company or any subsidiary of the PRC Entities, is bound or affected; , or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate charter or by-laws, the Establishment Documents (as defined in Section 4(a)(ii) hereof) of incorporation any of the PRC Entities or bylaws, each the VIE Structuring Documents (as are presently defined in effect, except, in the case of clauses (iSection 4(a)(iii) and (ii) above, as would not reasonably be expected to have a Material Adverse Effecthereof).
(eiv) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries or any the PRC Entities, in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or restricted stock in the ordinary course of business, since the respective dates as of which information is provided in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to subscribe for purchase or to purchase, or any restriction upon acquire from the voting or transfer of, Company any shares of Common Stock pursuant the capital stock of the Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights.
(vi) Each of the Company and the PRC Entities, has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to the Company’s certificate date hereof or has duly obtained extensions of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which time for the filing thereof. Each of the Company is a party and the PRC Entities has paid all taxes (as hereinafter defined) shown as due on such returns that were filed and has paid all taxes imposed on or by which assessed against the Company is boundor such PRC Entities. The provisions for taxes payable, if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements. Except as disclosed in writing to the Underwriters and as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves no issues have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued raised (and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against the Company or any of its subsidiaries (which are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiariesany of the PRC Entities, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forceany of the PRC Entities. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect to taxes.
(vii) Since the respective dates as of Taxeswhich information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither the Company nor any of the PRC Entities, has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of the PRC Entities, (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt or the debt of any of the PRC Entities, and (e) there has not been the occurrence of any Material Adverse Effect.
(viii) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of the PRC Entities, is a party or of which any property or assets of the Company or any of the PRC Entities is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(ix) The Company and each of the PRC Entities, holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of the PRC Entities, have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, the property held under lease or pursuant to land use rights by the Company and the PRC Entities, is held by them under valid, subsisting and enforceable leases or land use rights, as the case may be, with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company and the PRC Entities.
(xi) The Company and each of the PRC Entities owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and the PRC Entities, as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. To the knowledge of the Company, no action or use by the Company or any of the PRC Entities, will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of the PRC Entities, has received any notice alleging any such infringement or fee.
(xii) Except as disclosed in the Registration Statement, the Time of Disclosure Sale Package and the Prospectus, each of the Company and the PRC Entities, has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Sxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiii) Neither the Company nor any of the PRC Entities, nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of the PRC Entities, is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xiv) The Company and each of the PRC Entities carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries in the PRC.
(xv) No labor dispute with the employees of the Company or any of the PRC Entities, exists or, to the knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvi) Neither the Company nor any of the PRC Entities, is in violation, breach or default under its certificate of incorporation, by-laws or other equivalent organizational or governing documents, except where the violation is not reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company, any of the PRC Entities, nor, to the knowledge of the Company, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xviii) No supplier, customer, distributor or sales agent of the Company or any of the PRC Entities, has notified the Company or any of the PRC Entities, that it intends to discontinue or decrease the rate of business done with the Company or any the PRC Entities, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, other than the Underwriters, no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the transactions contemplated hereby.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the Underwriters, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s charter or by-laws.
(iv) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation incorporation, by-laws or bylawsother equivalent organizational or governing documents, each as are presently in effectexcept where the violation, except, breach or default in the case of clauses (i) and (ii) above, as would a subsidiary of the Company is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries and affiliates in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or other rights to subscribe for or to purchaserestricted stock in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive or any subsidiary of the Companyregistration rights.
(hvii) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries and affiliates has filed all federal, state, local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensions, and (ii) each hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its subsidiaries and affiliates has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements, except . Except as disclosed in writing to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims Representative, (i) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiariessubsidiaries or affiliates, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forceor affiliates. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither the Company nor any of its subsidiaries or affiliates has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries or affiliates (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries or affiliates is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries and affiliates holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries and affiliates have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries and affiliates is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company and its subsidiaries and affiliates.
(xii) The Company and each of its subsidiaries and affiliates owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries and affiliates as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries or affiliates will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries or affiliates has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries and affiliates has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries or affiliates nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries or affiliates is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries and affiliates carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries in the territory where the operation of the Company is located.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company, its subsidiaries, its affiliates nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xviii) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to the Underwriters or the sale of the Shares hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect the Underwriters’ compensation, as determined by FINRA.
(xx) Except as disclosed to the Underwriters in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxi) None of the net proceeds of the offering will be paid by the Company to any participating FINRA member or any affiliate or associate of any participating FINRA member, except to the Underwriters or as specifically authorized herein.
(xxii) To the Company’s knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise the Underwriters and their counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect the offering.
(xxiii) Other than the Underwriters, no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the transactions contemplated hereby.
(xxiv) As of TaxesDecember 31, 2009, the Company was a “smaller reporting company” as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934.
(xxv) As of December 10, 2009, the market value of the Company’s outstanding common stock held other than by affiliates of the Company was in excess of $100,000,000.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the Underwriters, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateFinal Prospectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effectby-laws.
(eiv) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or other rights to subscribe for or to purchaserestricted stock in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Shares, when issued upon payment therefor pursuant to the terms of this Agreement, will be duly authorized and validly issued, will be fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or any subsidiary of the Companysimilar rights.
(hvi) Except for China Broadband, Ltd., a Cayman Islands company (“CB Cayman”), Sinotop Group Limited, a Hong Kong company (“Sinotop Hong Kong”), and the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or PRC Entities (as subsequently disclosed defined in a Current Report on Form 8-K filed under the Exchange ActSection 4(a)(i) below), the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or entity. CB Cayman has been duly organized and is validly existing as a company in good standing under the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each laws of the Company Cayman Islands and has the corporate power and authority to own, lease and operate its subsidiaries has filed all federal, state, local property and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each conduct its business. All of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which outstanding equity interests of CB Cayman are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established owned by the Company or such respective subsidiariesCompany. The accrualsCompany’s ownership of the equity interests of Sinotop Hong Kong, reserves or provisions made by the Company or its subsidiaries for Taxes payableJinan Zhong Xxxx Xxxx Guang Information Technology Co., if anyLtd. and Beijing China Broadband Network Technology Co., shown on the financial statements filed with or included Ltd., are as set forth in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against the Company or any of its subsidiaries (which are currently pending) by any Taxing authority in connection with Tax Returns or Taxes of the Company or its subsidiaries, and no waivers of statutes of limitation with respect to the assessment or payment of Taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxes” mean all federal, state, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of TaxesPackage.
Appears in 1 contract
Samples: Underwriting Agreement (You on Demand Holdings, Inc.)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. The Company represents and warrants to, to and agrees with, with the Underwriters, as of the date hereof and as of each Closing Date, as followsPlacement Agent that:
(a) The Company has been duly incorporated and is a validly existing as a corporation company limited by shares in good standing under the laws of the State of Delaware. The Company has the corporate British Virgin Islands, with power and authority (corporate and other) to own, lease and operate own its properties and to conduct its business as currently being carried on in the manner presently conducted and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, ; and the Company is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction all other jurisdictions in which such qualification is required, whether by reason of the its ownership or lease of property or the conduct of businessits business requires such qualification.
(b) Each of the subsidiaries of the Company (the “Subsidiaries”), except where the failure to so qualify or be has been duly incorporated and is existing and in good standing (as applicable) under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus; and each of the Subsidiaries is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except such as would not have not, individually or be reasonably likely to in the aggregate, (i) result in a material adverse effect upon on the business, prospects, properties, operations, condition (financial or otherwise) or ), results of operations operations, business, properties or prospects of the Company Company, and its subsidiaries, the Subsidiaries taken as a whole, or (ii) prevent the consummation of the transactions contemplated hereby (the occurrence of any such effect or any such prevention described in its ability the foregoing clauses (i) and (ii) is referred to perform its obligations under this Agreement (hereinafter as a “Material Adverse Effect”); except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, (A) the Company has no other subsidiaries and (B) the Company exclusively owns or controls (as such term is defined in the Securities Act), directly or indirectly, all of the issued and outstanding capital stock or other equity interest, as applicable, in each of the Subsidiaries. All of the issued and outstanding capital stock or other equity interest, as applicable, of each of the Subsidiaries have been duly authorized and validly issued and is fully paid and nonassessable; the capital stock or other equity interest, as applicable, of each Subsidiary owned by the Company, directly or through the Subsidiaries, is owned free from Liens (as defined below) and defects; and none of the capital stock of or other equity interest in, as applicable, any Subsidiary was issued in violation of pre-emptive or similar rights of any security holder of such Subsidiary. The memorandum and articles of association or other constitutive or organizational documents of each of the Company and the Subsidiaries comply with the requirement of applicable law in their respective jurisdictions of incorporation and are in full force and effect. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no outstanding options or other rights to acquire from the Company or any of the Subsidiaries, or other obligation of any of the Company or the Subsidiaries to issue, any capital stock or securities of any of the Subsidiaries. No order has been made or petition presented or resolution passed for the winding up, liquidation or dissolution of any of the Company or the Subsidiaries and no distress, execution or other process has been levied on any of the Company or the Subsidiaries.
(bc) Each subsidiary Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, the Company and the Subsidiaries possess, and are in compliance with the terms of, all certificates, authorizations, franchises, licenses and permits (the “Licenses”) necessary or material to the conduct of the Company has been duly incorporated business now conducted or organized and is validly existing as a corporation or limited liability company proposed in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus to be conducted by any of them and is duly qualified have not received any notice of proceedings relating to transact business and is in good standing inthe revocation or modification of any License that, each jurisdiction in which such qualification is required, whether by reason if determined adversely to the Company or any of the ownership of property Subsidiaries, would individually or in the conduct of business, except where the failure to so qualify or be in good standing would not aggregate have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cd) The Company has the requisite corporate power and authority has been duly authorized by all necessary corporate action on the part of the Company to enter into execute, deliver and perform this Agreement Agreement. All actions on the part of the Company, the Subsidiaries, their respective officers, directors and to sell shareholders necessary for the authorization, execution and delivery of this Agreement, the performance of all obligations of the Company hereunder and the authorization, sale, issuance and delivery by the Company of the Offered Securities (and the underlying Shares or Shares purchasable upon exercise thereof, as applicable) as contemplated by this Agreement. This Agreement has have been duly authorized, executed and delivered by taken or will be taken prior to the CompanyClosing Date, and this Agreement constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(de) The execution, delivery and performance of this Agreement and the consummation Securities Purchase Agreement, the issuance and sale of the transactions herein contemplated Offered Securities, the issuance and delivery of the ADSs, the Shares upon exercise of the Warrants and the ADSs representing such Shares, the deposit of such Shares with the Depositary against issuance of the ADRs evidencing the ADSs, and compliance by the Company with the terms and provisions of this Agreement and the Offered Securities will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any lawstatute, orderrule, rule regulation or regulation to which order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any subsidiary is subject, or by which any property or asset of the Company Subsidiaries or any subsidiary is bound or affected; of their respective properties, (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) or a Debt Repayment Triggering Event (as defined below) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any contract, agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary of the Subsidiaries is a party of or by which any property or asset of the Company or any subsidiary of the Subsidiaries is bound or affected; or subject, (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate memorandum and articles of incorporation or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effect.
(e) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(f) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, are duly authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe for or to purchase, association or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock constitutional documents of the Company or any subsidiary of the Company.
Subsidiaries or (hD) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or result in the aggregate with all other unnamed subsidiariescreation or imposition of any lien, would constitute pledge, charge, security interest or encumbrance (each, a “significant subsidiary” as such term is defined in Rule 1-02 Lien”) on any asset of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against the Company or any of its subsidiaries the Subsidiaries; a “Debt Repayment Triggering Event” means any event or condition that gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture, or other evidence of indebtedness (which are currently pendingor any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by any Taxing authority in connection with Tax Returns or Taxes of the Company or its subsidiaries, and no waivers any of statutes of limitation with respect to the assessment or payment of Taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxes” mean all federal, state, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of TaxesSubsidiaries.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, and agrees with, the UnderwritersPlacement Agent, except as set forth in the Registration Statement, the Time of Sale Disclosure Package, the date hereof Final Prospectus and as of each Closing Datethe attached Schedule 4, as follows:
(ai) The Company has and each of its subsidiaries have been duly incorporated organized and each is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, its business makes such qualification necessary except where the failure to so qualify or be in good standing would not have or be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The Except as set forth in Schedule 4, the execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of or by which any property or asset of the Company or any subsidiary is bound or affected; affected except to the extent such conflict, violation, breach, default, or right of termination, amendment, acceleration or cancellation is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effect.
(eiv) All Except as set forth in Schedule 4, all consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or other rights to subscribe for or to purchaserestricted stock in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Shares, when issued and paid for pursuant to this Agreement, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and free of preemptive, registration or any subsidiary similar rights. The Warrants constitute valid and binding obligations of the Company. The Warrant Shares, when issued in accordance with the terms of the Warrants, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and free of preemptive, registration or similar rights.
(hvi) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange ActOther than its subsidiaries, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.entity.
(ivii) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries has filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereofhereof or has duly obtained extensions of time for the filing thereof. Except as set forth in Schedule 4, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements. Except as set forth on Schedule 4, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims (i) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the conversion of the Company’s Senior Secured Convertible Notes due April 1, 2019, exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) Except as set forth in Schedule 4, there is not pending or, to the Knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) Except as set forth in Schedule 4, the Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company or its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. To the Knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) except as disclosed in the Company’s filings with the Commission, the Sxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the Knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the Offering of the Units contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) Except as set forth in Schedule 4, the Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation, bylaws or other equivalent organizational or governing documents, except where the violation is not reasonably likely to result in a Material Adverse Effect.
(xviii) Neither the Company, its subsidiaries nor, to its Knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xix) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xx) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to Rxxx or the sale of the Units hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect Rxxx’x compensation, as determined by FINRA.
(xxi) Except as set forth on Schedule 4, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member, within the 180 day period prior to the date hereof.
(xxii) To the Company’s Knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the date hereof, has any direct or indirect affiliation or association with any FINRA member. The Company will advise Rxxx and its counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect the Offering.
(xxiii) Other than the Placement Agent, no person has the right to act as a placement agent, underwriter or as a financial advisor in connection with the sale of Taxesthe Units contemplated hereby.
Appears in 1 contract
Samples: Placement Agency Agreement (Real Goods Solar, Inc.)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the UnderwritersUnderwriter, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State its jurisdiction of Delawareincorporation. The Company has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or could reasonably be reasonably likely expected to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary . Substantially all of the business of the Company has been duly incorporated or organized is conducted directly by the Company and is validly existing as a corporation or limited liability company in good standing under the laws Company owns substantially all of the State assets used or held for use in the business of Delaware, has corporate or similar power the Company and authority to own, lease and operate its properties and to conduct its business subsidiaries as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party theretoProspectus. None of the outstanding shares of capital stock ofCompany’s subsidiaries (i) owns or leases any assets or properties or (ii) conducts any business, in each case material to the business or other equity interests in, any subsidiary operations of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiaryand its subsidiaries, taken as a whole.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) (a “Default Acceleration Event”) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent that such conflict, default or Default Acceleration Event could not reasonably be expected to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effectby-laws.
(eiv) The Company is not in violation, breach or default under its certificate of incorporation, by-laws or other equivalent organizational or governing documents.
(v) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement by the Company have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is could not reasonably likely be expected to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or restricted stock in the ordinary course of business, since the respective dates as of which information is provided in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements or other rights in existence to subscribe for purchase or to purchase, or any restriction upon acquire from the voting or transfer of, Company any shares of Common Stock pursuant the capital stock of the Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights.
(vii) The Company has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to the date hereof or has duly obtained extensions of time for the filing thereof. The Company has paid all taxes (as hereinafter defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed against the Company’s certificate . The provisions for taxes payable, if any, shown on the financial statements filed with or as part of incorporation the Registration Statement are sufficient for all accrued and unpaid taxes, whether or bylawsnot disputed, each as presently in effect, or any agreement or other instrument and for all periods to which and including the Company is a party or by which the Company is bounddates of such consolidated financial statements. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves no issues have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued raised (and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against the Company or any of its subsidiaries (which are currently pending) by any Taxing taxing authority in connection with Tax Returns or Taxes any of the Company returns or its subsidiariestaxes asserted as due from the Company, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxes” mean all federal, state, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxes.by
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the UnderwritersPlacement Agent, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateFinal Prospectus, as follows:
(ai) The Company and each of its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State its jurisdiction of Delawareincorporation. The Company and each of its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the corporate power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument or binding obligation or other binding understanding (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, except in the case of clauses (iA) and (iiB) abovesuch breaches, as would violations, defaults, or conflicts which do not individually or in the aggregate be reasonably be expected likely to have result in a Material Adverse Effect.
(eiv) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in material compliance with all federal and state applicable securities laws, were not issued and conform in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms all material respects to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or restricted stock or restricted stock units in the ordinary course of business, since the respective dates as of which information is provided in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to subscribe for purchase or to purchase, or any restriction upon acquire from the voting or transfer of, Company any shares of Common Stock pursuant to the capital stock of the Company’s certificate . The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, issued in material compliance with all applicable securities laws, and free of incorporation preemptive, registration or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. similar rights.
(vi) Except as disclosed set forth in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except Prospectus and except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange ActSilvaGas Corporation, the Company does not own, directly or indirectly, any a majority of the capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.entity.
(ivii) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries has filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensions, and (ii) each hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against the Company or any of its subsidiaries (which are currently pending) by any Taxing authority in connection with Tax Returns or Taxes of the Company or its subsidiaries, and no waivers of statutes of limitation with respect to the assessment or payment of Taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, required to be reflected on a balance sheet in accordance with generally accepted accounting principles, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company or its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, except those the absence of which are not reasonably likely to result in a Material Adverse Effect. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any written notice alleging any such material infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any written notice of violation relating to any applicable law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation (to the extent applicable), (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the Offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation, bylaws or other equivalent organizational or governing documents, except where the violation is not reasonably likely to result in a Material Adverse Effect.
(xviii) Neither the Company, its subsidiaries nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xix) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such discontinuation or decrease is not reasonably likely to result in a Material Adverse Effect.
(xx) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to the Placement Agent or the sale of the Shares hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company to which the Company is a party that, to the knowledge of the Company, will affect the Placement Agent’s compensation, as determined by FINRA.
(xxi) Except as disclosed to the Placement Agent in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxii) To the Company’s knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member.
(xxiii) Other than the Placement Agent, no person has the right to act as a placement agent, underwriter or as a financial advisor in respect of Taxesconnection with the Offering contemplated hereby.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. The Company represents and warrants to, and agrees with, the UnderwritersUnderwriter, as of the date hereof and as of each Closing Date, as follows:
(a) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware. The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have or be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”)agreement, dated December 17, 2020, by and among the Company, as borrower, Xxxxx Fargo Bank, National Association (as successor to Fifth Third Bank, National Association), as administrative agent, and the lenders from time to time party thereto, as amended, restated, amended and restated, supplemented or otherwise modified (the “Credit Agreement”). None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(c) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(d) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: (i) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; (ii) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; or (iii) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effect.
(e) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(f) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5June 30, 20212023, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 113,385,923 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, are duly authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the UnderwritersUnderwriter); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 20202022, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against the Company or any of its subsidiaries (which are currently pending) by any Taxing authority in connection with Tax Returns or Taxes of the Company or its subsidiaries, and no waivers of statutes of limitation with respect to the assessment or payment of Taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxes” mean all federal, state, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxes.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the Underwriters, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Each of the Company and its significant subsidiaries (as such term is defined in Rule 1-02(w) of Regulation S-X) (A) has been duly incorporated organized and is validly existing as a corporation or other legal entity in good standing (or the foreign equivalent thereof) under the laws of the State its jurisdiction of Delaware. The Company incorporation or organization, (B) has the corporate or other legal entity power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on conducted and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and (C) is duly qualified to do business as a foreign corporation to transact business and is or other legal entity in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of businessits business makes such qualification necessary, except where the failure to be so qualify or be in good standing qualified would not have or be reasonably likely to result in a material adverse effect upon on the properties, business, prospects, properties, operations, condition (financial or otherwise) or earnings, results of operations or financial condition of the Company and its subsidiaries, taken as a whole, or in its on the Company’s ability to perform its obligations in all material respects under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the corporate power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by subject to (i) bankruptcy, insolvency, reorganization reorganization, receivership, moratorium, fraudulent conveyance, fraudulent transfer or similar laws affecting the in effect relating to creditors’ rights of creditors generally and subject to (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought.
(diii) The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions herein contemplated issuance and sale of the Shares will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylawsby-laws, each as are presently in effect, except, except in the case of clauses (i) A), (B), and (iiC) abovefor such breaches, as violations, defaults or conflicts which would not not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(eiv) Neither the Company nor any of its subsidiaries is (A) in violation of its certificate of incorporation, by-laws or other organizational documents, (B) in violation of any U.S. or non-U.S. federal, state or local statute, law (including, without limitation, common law) or ordinance or any judgment, decree, rule, regulation, order or injunction of any U.S. or non-U.S. federal, state, local or other governmental or regulatory authority, governmental or regulatory agency or body, court, arbitrator or self-regulatory organization (each, a “Governmental Authority”), applicable to any of them or any of their respective properties, or (C) in breach of or default under any bond, debenture, note, loan or other evidence of indebtedness, indenture, mortgage, deed of trust, lease or any other agreement or instrument to which any of them is a party or by which any of them or their respective property is bound, except, in the case of clauses (B) and (C) for such violations, breaches or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(v) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement by the Company have been obtained or made, other than (A) any such consents, approvals, orders orders, authorizations and required filings that will be obtained or made after the date of this Agreement under the Securities Act, the Exchange Act, the Rules and Regulations and applicable state and foreign securities laws in connection with the offer and sale of the Shares, (B) the listing of the Shares on the NYSE MKT, and (C) such consents, approvals, orders, authorizations and filings the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(f) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, are duly authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, .
(ivi) each All of the issued and outstanding shares of capital stock of the Company are duly authorized and its subsidiaries has filed validly issued, fully paid and nonassessable, and have been issued in compliance with all federalapplicable securities laws, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior conform in all material respects to the date hereofdescription thereof in the Registration Statement, subject the Time of Sale Disclosure Package and the Prospectus. Except for the issuance of Shares pursuant to permitted extensions, this Agreement and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxesthe issuances of options or restricted stock in the ordinary course of business or periodic grants consistent with past practice, if any, since the respective dates as of which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included information is provided in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company any shares of the capital stock of the Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights. Except with respect to those shares and equity interests subject to pledges under the Company’s and its subsidiaries’ debt agreements which agreements are described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, all of the outstanding shares of capital stock or other equity interests of each of the Company’s subsidiaries are owned, directly or indirectly, by the Company, free and clear of all liens, security interests, mortgages, pledges, charges, equities, claims or restrictions on transferability or encumbrances of any kind, other than those imposed by the organizational documents of such subsidiary, the Securities Act and the securities or “Blue Sky” laws of any U.S. state or non-U.S. jurisdictions.
(vii) The Company maintains an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The Company has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(viii) The Company has implemented and maintains a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles as applied in the United States (“GAAP”), including, without limitation, that (A) transactions are executed in accordance with management’s general or specific authorizations, (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (C) access to assets is permitted only in accordance with management’s general or specific authorization, (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences, and (E) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus are sufficient fairly presents the information called for in all accrued material respects and unpaid Taxes, whether or not disputed, for all has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(ix) All Tax periods prior (as hereinafter defined) returns required to be filed by the Company and including the dates of such consolidated financial statementsits subsidiaries, except where the failure to file such return would not, individually or in the extent of any inadequacy that would not result in aggregate, have a Material Adverse Effect. No material claims , have been made filed and all such returns are true, complete and correct in all material respects. All material Taxes that are due from the Company and its subsidiaries have been paid other than those (A) currently payable without penalty or interest or (B) being contested in good faith and by appropriate proceedings and for which adequate accruals have been established in accordance with GAAP. To the knowledge of the Company, there are no actual or proposed Tax assessments against the Company or any of its subsidiaries (which are currently pending) by any Taxing authority that would, individually or in connection with Tax Returns or Taxes the aggregate, have a Material Adverse Effect. The accruals on the books and records of the Company or its subsidiaries, and no waivers of statutes of limitation with respect to the assessment or payment of Taxes have been given by or requested from the Company or its subsidiaries that in respect of any material Tax liability for any period not finally determined are currently in forceadequate to meet any assessments of Tax for any such period. The For purposes of this Agreement, the term “Tax” and “Taxes” shall mean all U.S. and non-U.S. federal, state, local, non-U.S., state and local taxes and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind, in the nature assessments of a taxsimilar nature (whether imposed directly or through withholding), imposed by including any Governmental Entity (as hereinafter defined) together with any interest and any penaltiesinterest, additions to tax, tax or additional amounts with respect penalties applicable thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxes.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the Underwriters, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Each of the Company and RhoMed Incorporated (the “Subsidiary”) has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and the Subsidiary has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiariesthe Subsidiary, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of . Except for the Subsidiary, the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delawaredoes not own any capital stock, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, membership interest or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiaryentity.
(cii) The Company has the power and authority to enter into this Agreement Agreement, the Warrant Agreement, the Warrants and the Underwriter Warrants (as defined below), and to authorize, issue and sell the Securities, the Underwriter Warrants and, subject to effecting the Increased Shares Amendment (as defined below), the Delayed Exercise Warrant Shares as contemplated by this Agreement. Each of this Agreement, the Warrant Agreement, the Warrant and the Underwriter Warrants has been duly authorized. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity. When executed and delivered by the Company in accordance with the terms hereof, each of the Warrant Agreement, the Warrants and the Underwriter Warrants will have been executed and delivered and will constitute a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement Agreement, the Warrant Agreement, the Warrants and the Underwriter Warrants and the consummation of the transactions contemplated herein contemplated and therein will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary the Subsidiary is subject, or by which any property or asset of the Company or any subsidiary the Subsidiary is bound or affected; , except for such breaches, violations or defaults as could not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate, or (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) (a “Default Acceleration Event”) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary the Subsidiary is a party of by which any property or asset of the Company or any subsidiary the Subsidiary is bound or affected; , except to the extent that such conflict, default or Default Acceleration Event is not reasonably likely to result in a Material Adverse Effect, or (iiiC) subject to effecting the Increased Shares Amendment, result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s charter or by-laws.
(iv) Neither the Company nor the Subsidiary is in violation, breach or default under its certificate of incorporation incorporation, by-laws or bylawsother equivalent organizational or governing documents, each as are presently in effectexcept where the violation, exceptbreach or default, in the case of clauses (i) and (ii) abovethe Subsidiary only, as would is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries the Subsidiary in connection with the execution, delivery or performance of this Agreement Agreement, the Warrant Agreement, the Warrants and the Underwriter Warrants have been obtained or made, other than (i) the approval of the Company’s stockholders of the Increased Shares Amendment (as defined below), (ii) effecting the Increased Shares Amendment, (iii) effecting the listing of the Delayed Warrant Exercise Shares on the NYSE Amex, and (iv) such other consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options, restricted stock units or other rights to subscribe for or to purchaserestricted stock in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary Company. The Shares and the Warrant Shares, when issued, paid for and delivered upon due exercise of the CompanyWarrants, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights. From and after the Authorized Shares Increase Date (as defined below), the Delayed Exercise Warrant Shares, when issued, paid for and delivered upon due exercise of the Delayed Exercise Warrants, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights. The Securities and the Underwriter Warrants, when issued, will conform in all material respects to the descriptions thereof set forth in the Prospectus.
(hvii) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries the Subsidiary has filed all federal, state, local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensions, and (ii) each hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its subsidiaries the Subsidiary has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiariesSubsidiary. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements, except . Except as disclosed in writing to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims Underwriters, (i) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiariesthe Subsidiary, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxes” mean all federal, state, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of TaxesSubsidiary.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the UnderwritersUnderwriter, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, as of the date hereof and as of each Closing Datehereof, as follows:
(ai) The Each of the Company and its significant subsidiaries, as defined in Rule 1.02 of Regulation S-X (each, a “Subsidiary,” and collectively, the “Subsidiaries”), has been duly incorporated organized and is validly existing as a corporation an entity in good standing under the laws of its jurisdiction of organization, except where the State failure to be in good standing would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect (as defined below). Each of Delaware. The the Company and its Subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon (x) the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in (y) its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any material law, order, rule or regulation to which the Company or any subsidiary Subsidiary is subject, or by which any material property or asset of the Company or any subsidiary Subsidiary is bound or affected; bound, (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any material agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary Subsidiary is a party of by which any property or asset of the Company or any subsidiary Subsidiary is bound bound, except to the extent that such conflict, default, termination, amendment, acceleration or affected; cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effectby-laws.
(eiv) Neither the Company nor any of its Subsidiaries is in violation, breach or default under its certificate of incorporation, by-laws or other equivalent organizational or governing documents.
(v) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries Subsidiaries (except as may be required under the Exchange Act, the Securities Act, the Rules or Regulations or blue sky laws or by the Financial Industry Regulatory Authority (“FINRA”)) in connection with the execution, delivery or performance of this Agreement by the Company have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is would not reasonably likely be expected, individually or in the aggregate, to have or result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were except for non-compliance that is not issued reasonably likely to result in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized andMaterial Adverse Effect, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe Except for or to purchasethe issuances of options, stock appreciation rights, restricted stock units, or any restriction upon restricted stock in the voting or transfer ofordinary course of business, any shares since the respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(hvii) Except Each of the Company and its Subsidiaries has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to the date hereof or has duly obtained extensions of time for the entities set forth filing thereof and has paid all taxes (as hereinafter defined) shown as due on Exhibit 21.1 of such returns that were filed and has paid all taxes imposed on or assessed against the Company’s Annual Report on Form 10-K Company or such respective Subsidiary, except in each case for the year ended December 31, 2020taxes currently being contested in good faith, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as that would not, individually or in the aggregate, reasonably be expected to have result in a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in incorporated into the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy for deficiencies that would not result not, individually or in the aggregate, have a Material Adverse Effect. No material claims have been made against the Company or any of its subsidiaries (which are currently pending) by any Taxing authority in connection with Tax Returns or Taxes of the Company or its subsidiaries, and no waivers of statutes of limitation with respect to the assessment or payment of Taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges taxes of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect to taxes.
(viii) Since the respective dates as of Taxeswhich information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company (other than a change in the number of outstanding shares of Common Stock due to the forfeiture of equity awards, the issuance of shares upon the exercise of outstanding options, stock appreciation rights or warrants or the issuance or settlement of restricted stock awards or restricted stock units under the Company’s existing or prior equity award plans, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, other than in the ordinary course of business and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its Subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which individually or in the aggregate, is reasonably expected to result in a Material Adverse Effect.
(x) The Company and its Subsidiaries hold, and are in compliance with, all material franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, in each case except where the failure to hold, or comply with, any such Permits is not reasonably likely to result in a Material Adverse Effect. To the knowledge of the Company, all such Permits are in full force and effect.
(xi) The Company and its Subsidiaries have good and marketable title to all tangible property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its Subsidiaries is held by them under valid, subsisting and enforceable leases, except those that are not likely to result in a Material Adverse Effect.
(xii) The Company and its Subsidiaries own or possess or have valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) reasonably necessary for the conduct of the business of the Company and its Subsidiaries as currently carried on and as described in or incorporated by reference into the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, except those that are not reasonably likely to result in a Material Adverse Effect. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of any Intellectual Property of others, except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any notice alleging such infringement, except those that, if the subject of an unfavorable decision, would, individually or in the aggregate, not result in a Material Adverse Effect.
(xiii) The Company and each of its Subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(xv) Except as would not reasonably be expected to result in a Material Adverse Effect, the Company and each of its Subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Except as would not reasonably be expected to result in a Material Adverse Effect, (A) none of the Company, its subsidiaries or, to the best of the Company’s knowledge, any other party is in violation, breach or default of any Contract, and (B) no event has occurred that, with notice or lapse of time or both, would constitute such a violation, breach or default of any Contract by the Company or its subsidiaries.
(xviii) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such discontinuance or decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) The Company has no actual knowledge, without having made any inquiry, that any officer or director of the Company or its Subsidiaries has any direct or indirect affiliation or association with the Underwriter or any affiliate of the Underwriter.
(xx) The Company and its consolidated Subsidiaries maintain a system of internal accounting controls designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with United States generally accepted accounting principles. Since the end of the Company’s most recent audited fiscal year, there has been (I) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (II) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(xxi) The Company and its consolidated Subsidiaries employ disclosure controls and procedures that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits with the Commission under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding disclosure.
(xxii) The Registration Statement, the Time of Sale Disclosure Package and the Prospectus, list all subsidiaries of the Company required to be so listed by Rule 601 of Regulation S-K.
(xxiii) There are no business relationships or related-party transactions involving the Company or any subsidiary required by Rule 404 of Regulation S-K to be disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus that have not been so disclosed.
(xxiv) The Company has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares contemplated by this Agreement other than any Preliminary Prospectus, the Time of Sale Disclosure Package or the Prospectus or other materials permitted by the Securities Act to be distributed by the Company.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the UnderwritersUnderwriter, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateFinal Prospectus, as follows:
(ai) The Company and each Subsidiary (as defined below) has been duly incorporated organized and is validly existing as a corporation in good standing (or the foreign equivalent thereof) under the laws of the State each of Delawaretheir respective jurisdictions of organization. The Company and each Subsidiary is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification and has the corporate all power and authority necessary to own, lease and operate own or hold its properties and to conduct the business in which it is engaged, except where the failure to so qualify or have such power or authority (i) would not have, singularly or in the aggregate, a material adverse effect on the condition (financial or otherwise), results of operations, assets or business or prospects of the Company or any Subsidiary, taken as a whole, or (ii) impair in any material respect the ability of the Company to perform its business obligations under this Agreement or to consummate any transactions contemplated by this Agreement, the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus (any such effect as currently being carried on described in clauses (i) or (ii), a “Material Adverse Effect”). The Company owns or controls, directly or indirectly, only the following corporations, partnerships, limited liability partnerships, limited liability companies, associations or other entities: Lpath Therapeutics Inc. (each, a “Subsidiary” and, collectively, the “Subsidiaries”).
(ii) The Company has the full right, power and authority to enter into this Agreement and to perform and to discharge its obligations hereunder; and this Agreement have been duly authorized, executed and delivered by the Company, and constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.
(iii) The Shares have been duly authorized and the Shares, when issued and delivered against payment therefor as provided herein, will be validly issued, fully paid and non-assessable and free of any preemptive or similar rights and will conform to the description thereof contained in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus.
(iv) The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and all of the issued shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and non-assessable, have been issued in all material respects in compliance with United States federal and state securities laws, and conform to the description thereof contained in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. As of September 30, 2012, there were 10,536,717 shares of Common Stock issued and outstanding, no shares of Preferred Stock, par value $0.001 of the Company, issued and outstanding and 2,810,210 shares of Common Stock were issuable upon the exercise of all options, warrants and convertible securities, and the vesting of restricted stock units, outstanding as of such date. Since such date, the Company has not issued any securities, other than Common Stock of the Company issued pursuant to the exercise of stock options or warrants, or the vesting of restricted stock units, previously outstanding under the Company’s stock incentive plans or the issuance of options, Common Stock, or restricted stock units pursuant to such plans (collectively, “Excluded Issuances”). All of the Company’s options, warrants and other rights to purchase or exchange any securities for shares of the Company’s capital stock have been duly authorized and validly issued and were issued in all material respects in compliance with United States federal and state securities laws. None of the outstanding shares of Common Stock was issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There are no authorized or outstanding shares of capital stock, options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any Subsidiary other than those described above or accurately described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. The description of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, accurately and is duly qualified fairly present the information required to do business as a foreign corporation be shown with respect to transact business such plans, arrangements, options and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have or be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”)rights.
(bv) Each subsidiary All the outstanding shares of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in of each subsidiary has Subsidiary have been duly authorized and validly issued, is are fully paid (in the case of an interest in a limited liability companyand non-assessable and, except to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(c) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(d) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: (i) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; (ii) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; or (iii) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effect.
(e) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(f) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, are duly authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as disclosed set forth in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no optionsowned by the Company directly or indirectly through one or more wholly-owned Subsidiaries, warrantsfree and clear of any claim, agreementslien, Contracts encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party.
(vi) The execution, delivery and performance of this Agreement by the Company, the issue and sale of the Shares by the Company and the consummation of the transactions contemplated hereby and thereby will not (with or without notice or lapse of time or both): (i) conflict with or result in a breach or violation of any of the terms or provisions of, constitute a default or Debt Repayment Triggering Event (as defined below) under, give rise to any right of termination or other rights in existence right or the cancellation or acceleration of any right or obligation or loss of a benefit under, or give rise to purchase the creation or acquire from the Company imposition of any lien, encumbrance, security interest, claim or charge upon any subsidiary of the Company any shares of the capital stock property or assets of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectlySubsidiary pursuant to, any capital stock indenture, mortgage, deed of trust, loan agreement or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture agreement or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as instrument to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or to which any of its subsidiaries (which are currently pending) by any Taxing authority in connection with Tax Returns the property or Taxes assets of the Company or its subsidiariesany Subsidiary is subject (each, and no waivers a “Contract” and, collectively, the “Contracts”); (ii) result in any violation of statutes the provisions of limitation the charter or by-laws (or analogous governing instruments, as applicable) of the Company or any Subsidiary; or, (iii) to the Company’s knowledge, result in the violation of any law, statute, rule, regulation, judgment, order or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their properties or assets, except with respect to the assessment or payment of Taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxes” mean all federalclauses (i) and (iii), stateany conflicts, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxes.breaches,
Appears in 1 contract
Samples: Underwriting Agreement (Lpath, Inc)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the UnderwritersUnderwriter, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of businessits business makes such qualification necessary, except in each case, where the failure to be so qualify or be in good standing qualified would not have or be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, financial condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its the Company’s ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the corporate power and authority to enter into this Agreement and to issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws law and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate articles of incorporation or bylawsby-laws, each as are presently amended, except in effectthe case of clauses (A) and (B), to the extent not reasonably likely to result in a Material Adverse Effect.
(iv) Neither the Company nor any of its subsidiaries is in violation, breach or default under its articles of incorporation, by-laws or other equivalent organizational or governing documents, each as amended, except, in the case of clauses (i) and (ii) abovea subsidiary of the Company, as would to the extent the violation, breach or default is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than (A) any such consents, approvals, orders, authorizations and filings to be obtained or made after the date of this Agreement under the Securities Act, the Exchange Act, the Rules and Regulations and applicable state and foreign securities laws in connection with the offer and sale of the Shares, (B) the listing of the Shares on NASDAQ, and (C) such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in material compliance with all federal and state applicable securities laws, were not issued and conform in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms all material respects to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 issuances of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, options or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital restricted stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiariesordinary course of business, would constitute a “significant subsidiary” since the respective dates as such term of which information is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included provided in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company any shares of the capital stock of the Company. The Shares, when issued and duly paid for as provided herein, will be duly authorized and validly issued, fully paid and nonassessable, and will be free of preemptive, registration or similar rights.
(vii) Each of the Company and its subsidiaries has (i) filed all accrued and unpaid Taxes, whether or not disputed, for all Tax periods returns (as hereinafter defined) required to be filed with taxing authorities prior to the date hereof or has duly obtained extensions of time for the filing thereof, and including the dates (ii) paid all taxes (as hereinafter defined) shown as due and payable on such returns that were filed, in each of such consolidated financial statementscases (i) and (ii), except (A) with respect to any taxes that are being contested in good faith and (B) to the extent of any inadequacy that would not reasonably likely to result in a Material Adverse Effect. No Except as disclosed to the Underwriter or its legal counsel, (i) no material claims issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect to taxes.
(viii) Since the respective dates as of Taxeswhich information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any material change in the number of outstanding shares of the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance, repurchase or forfeiture of restricted stock awards or restricted stock units under the Company’s existing stock awards plans, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the outstanding principal amount of the Company’s long-term or short-term debt (except for any changes that have resulted or may result from any repurchase made in connection with the Company’s offer to repurchase (the “Tender Offer”) its 1.75% Convertible Subordinated Debentures due 2024 (the “Convertible Debentures”), which offer was disclosed by the Company on its Form TO, filed with the Commission on April 13, 2011), and (e) there has not been any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, in each case, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company and its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) that are material to the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not knowingly directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company carries, or is covered by, insurance in such amounts and covering such risks as the Company believes is reasonable for the conduct of its business and the value of its properties.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, except for any such dispute that is not reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xviii) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) Except for this Agreement and the engagement letter, dated March 28, 2011, neither the Company nor any of its subsidiaries is party to any arrangements or understandings for services in the nature of a finder’s, consulting, underwriting or origination fee for the offer and sale of the Shares hereunder, and neither the Company nor any of its subsidiaries has paid any such fee with respect to the introduction of the Company to the Underwriter or for the offer and sale of the Shares hereunder.
(xx) [Intentionally omitted.]
(xxi) To the knowledge of the Company, based on the Company’s review of Schedules 13D and 13G filed with the Commission with respect to the outstanding Common Stock of the Company, there are no beneficial owners of 5% or more of the Company’s Common Stock, except for Renaissance Technologies LLC; provided, however, that the Company hereby informs the Underwriter that on February 14, 2011 Xxxxxxx River Fund Management Co., LLC filed with the Commission a Form 13-F with respect to 844,383 shares of Common Stock. The Company will advise the Underwriter and its counsel if it becomes aware, prior to the Closing Date, that any beneficial owner of 5% or more of the Company’s Common Stock (other than Renaissance Technologies LLC) is or becomes a member of FINRA or an affiliate or associated person of a FINRA member.
(xxii) The Company has not issued any unregistered equity securities to any person during the 180-day period immediately preceding the date that the Company filed the Registration Statement with the Commission.
(xxiii) The Company does not have any current intention to direct any proceeds of the offering and sale of the Shares to a member of FINRA, except as provided herein.
(xxiv) Other than the Underwriter, the Company has not appointed or granted any right to any person to act as an underwriter or financial advisor to the Company with respect to the offer and sale of the Shares.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, and agrees with, the Underwriters, except as set forth in the Registration Statement, the Time of Sale Disclosure Package or the date hereof and as of each Closing DateFinal Prospectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described described, as of the respective dates as of which information is provided, in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of businessits business makes such qualification necessary, except in each case, where the failure to be so qualify or be in good standing qualified would not have or be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, financial condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its the Company’s ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the corporate power and authority to enter into this Agreement and to issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws law and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate articles of incorporation or bylawsby-laws, each as are presently amended, except in effectthe case of clauses (A) and (B), to the extent not reasonably likely to result in a Material Adverse Effect.
(iv) Neither the Company nor any of its subsidiaries is in violation, breach or default under its articles of incorporation, by-laws or other equivalent organizational or governing documents, each as amended, except, in the case of clauses (i) and (ii) abovea subsidiary of the Company, as would to the extent the violation, breach or default is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than (A) any such consents, approvals, orders, authorizations and filings to be obtained or made after the date of this Agreement under the Securities Act, the Exchange Act, the Rules and Regulations and applicable state and foreign securities laws in connection with the offer and sale of the Shares, (B) the listing of the Shares on Nasdaq, and (C) such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in material compliance with all federal and state applicable securities laws, were not issued in violation and, as of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy the respective dates as of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized andinformation is provided, when issued, delivered and paid for conform in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms all material respects to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or other rights restricted stock in the ordinary course of business, shares to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock be issued pursuant to the Company’s certificate of incorporation or bylawsSecurities Purchase Agreement, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final ProspectusShares, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from since the Company or any subsidiary respective dates as of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term which information is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included provided in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued and unpaid TaxesProspectus, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against the Company has not entered into or granted any of its subsidiaries (which are currently pending) by any Taxing authority convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in connection with Tax Returns existence to purchase or Taxes of the Company or its subsidiaries, and no waivers of statutes of limitation with respect to the assessment or payment of Taxes have been given by or requested acquire from the Company or its subsidiaries that are currently in forceany shares of the capital stock of the Company. “Securities Purchase Agreement” means the Amended and Restated Securities Purchase Agreement dated December 4, 2020 between the Company and the investors named therein. The term “Taxes” mean all federalShares, statewhen issued and duly paid for as provided herein, localwill be duly authorized and validly issued, non-U.S.fully paid and nonassessable, and other net incomewill be free of preemptive, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties registration or other taxes, fees, assessments, or charges of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxessimilar rights.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, and agrees with, the UnderwritersPlacement Agent, except as set forth in the Registration Statement, the Time of Sale Disclosure Package, the date hereof Final Prospectus and as of each Closing Datethe attached Schedule 4, as follows:
(ai) The Company has and each of its subsidiaries have been duly incorporated organized and each is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, its business makes such qualification necessary except where the failure to so qualify or be in good standing would not have or be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The Except as set forth in Schedule 4, the execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of or by which any property or asset of the Company or any subsidiary is bound or affected; affected except to the extent such conflict, violation, breach, default, or right of termination, amendment, acceleration or cancellation is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effect.
(eiv) All Except as set forth in Schedule 4, all consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or other rights to subscribe for or to purchaserestricted stock in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Shares, when issued and paid for pursuant to this Agreement, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and free of preemptive, registration or any subsidiary similar rights. The Warrants constitute valid and binding obligations of the Company. The Warrant Shares, when issued in accordance with the terms of the Warrants, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and free of preemptive, registration or similar rights.
(hvi) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange ActOther than its subsidiaries, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.entity.
(ivii) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries has filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereofhereof or has duly obtained extensions of time for the filing thereof. Except as set forth in Schedule 4, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements. Except as set forth on Schedule 4, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims (i) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the conversion of the Company’s Senior Secured Convertible Notes due April 1, 2019, exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) Except as set forth in Schedule 4, there is not pending or, to the Knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) Except as set forth in Schedule 4, the Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company or its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. To the Knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) except as disclosed in the Company’s filings with the Commission, the Sxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the Knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the Offering of the Units contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) Except as set forth in Schedule 4, the Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation, bylaws or other equivalent organizational or governing documents, except where the violation is not reasonably likely to result in a Material Adverse Effect.
(xviii) Neither the Company, its subsidiaries nor, to its Knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xix) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xx) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to Rxxx or the sale of the Units hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect Rxxx’x compensation, as determined by FINRA.
(xxi) Except as set forth on Schedule 4, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member, within the 180 day period prior to the date on which the preliminary prospectus supplement was filed with the Commission (“Filing Date”) or thereafter.
(xxii) To the Company’s Knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise Rxxx and its counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect the Offering.
(xxiii) Other than the Placement Agent, no person has the right to act as a placement agent, underwriter or as a financial advisor in connection with the sale of Taxesthe Units contemplated hereby.
Appears in 1 contract
Samples: Placement Agency Agreement (Real Goods Solar, Inc.)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, Rxxx, except as set forth in the UnderwritersRegistration Statement, as the Time of Sale Disclosure Package and the date hereof and as of each Closing DateFinal Prospectus, as follows:
(ai) The Company and each of its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State its jurisdiction of Delawareincorporation. The Company and each of its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary ; provided that none of the Company has been duly incorporated or organized following alone shall be deemed, in and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delawareitself, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have constitute a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid : (x) a change in the case market price or trading volume of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement common stock or (y) changes in general economic conditions or changes affecting the “Credit Agreement”), dated December 17, 2020, among industry in which the Company operates generally (as opposed to Company-specific changes) so long as such changes do not have a materially disproportionate effect on the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, except in the case of each of clauses (iA) and or (ii) aboveB), such as would not have or reasonably be expected to have result in a Material Adverse Effect.
(eiv) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options, restricted stock or other rights to subscribe for or to purchaserestricted stock units in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Securities, when issued, will be duly authorized and validly issued, and the Shares, when issued, will be fully paid and nonassessable, issued in compliance with all applicable securities laws, and free of preemptive, registration or any subsidiary similar rights. The shares of Common Stock underlying the CompanyWarrants, when issued, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and free of preemptive, registration or similar rights.
(hvi) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the The Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity thatentity, individually or other than the Company’s interest in the aggregate with all other unnamed its subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X..
(ivii) Except as for matters that would not, individually or in the aggregate, have or reasonably be expected to have result in a Material Adverse Effect, (ia) each of the Company and its subsidiaries has filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereofhereof or has duly obtained extensions of time for the filing thereof, subject to permitted extensions, and (iib) each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except and (c) the provisions for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements. Except as disclosed in writing to Rxxx, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims (i) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus or otherwise described therein, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the Knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and valid title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company or its subsidiaries or which would not reasonably be expected to have a Material Adverse Effect.
(xii) To the Company’s Knowledge, the Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and which the failure to so have would have a Material Adverse Effect. To the Knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Sxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the Knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the Offering of the Securities contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as the Company reasonably believes is adequate for the conduct of its business and the value of its properties and as is customary for companies of similar size engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation, bylaws or other equivalent organizational or governing documents, except where the violation is not reasonably likely to result in a Material Adverse Effect.
(xviii) Neither the Company, its subsidiaries nor, to its Knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xix) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such discontinuance or decrease is not reasonably likely to result in a Material Adverse Effect.
(xx) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to Rxxx or the sale of the Securities hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect Rxxx’x compensation, as determined by FINRA.
(xxi) Except as disclosed to Rxxx in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxii) To the Company’s Knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise Rxxx and its counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect the Offering.
(xxiii) Other than Rxxx, no person has the right to act as a placement agent, underwriter or as a financial advisor in connection with the sale of Taxesthe Securities contemplated hereby.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the UnderwritersUnderwriter, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s charter or by-laws.
(iv) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation incorporation, by-laws or bylawsother equivalent organizational or governing documents, each as are presently in effectexcept where the violation, except, breach or default in the case of clauses (i) and (ii) above, as would a subsidiary of the Company is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or other rights to subscribe for or to purchaserestricted stock in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive or any subsidiary of the Companyregistration rights.
(hvii) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensions, and (ii) each hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements, except . Except as disclosed in writing to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims Underwriter, (i) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company and its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries in the territory where the operation of the Company is located.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company, its subsidiaries nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xviii) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to the Underwriter or the sale of the Shares hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect the Underwriter’s compensation, as determined by FINRA.
(xx) Except as disclosed to the Underwriter in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxi) None of the net proceeds of the offering will be paid by the Company to any participating FINRA member or any affiliate or associate of any participating FINRA member, except to the Underwriter or as specifically authorized herein.
(xxii) To the Company’s knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise the Underwriter and its counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect of Taxesthe offering.
(xxiii) Other than the Underwriter, no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the transactions contemplated hereby.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, and agrees with, the Underwriters, as of the date hereof and as of each Closing DateUnderwriter, as follows:
(ai) The Each of the Company and Subsidiaries (as defined below) has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its Subsidiaries has the corporate power and authority to own, own or lease and operate its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package each preliminary prospectus, and the Final Prospectus, Prospectus and is duly qualified to do business as a foreign corporation to transact business and is in good standing in under the laws of each jurisdiction in which it owns or leases properties or conducts business so as to require such qualification is required, whether by reason of the ownership of property or the conduct of businessqualification, except where the failure to be so qualify qualified or be in good standing would standing, as the case may be, could not have or reasonably be reasonably likely expected to result in in: (i) a material adverse effect upon on the legality, validity or enforceability of this Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects, properties, operations, prospects or condition (financial or otherwise) or results of operations of the Company and its subsidiariesthe Subsidiaries, taken as a whole, or in its (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(ii) The Company has no subsidiaries other than those subsidiaries set forth on Exhibit 21 of the Registration Statement (the “Subsidiaries”).
(biii) Each subsidiary The authorized, issued and outstanding capital stock of the Company conforms to the description thereof contained in the Pricing Prospectus and the Prospectus. The issued and outstanding Common Stock have been duly authorized and validly issued and are fully paid and nonassessable. The sale of the Shares by the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and after issuance of and payment for such Shares in accordance with this Agreement, such Shares will be validly issued, is fully paid (in the case of an interest in a limited liability company, and nonassessable. The Underwriter will acquire good and marketable title to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may Shares to be limited by the Delaware Limited Liability Company Act), and is owned sold by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agentother claim, and the lenders from time holders of Common Stock are not entitled to time party theretoany preemptive rights with respect to the Shares to be sold by the Company. The issued and outstanding shares of the capital stock of each of the Subsidiaries of the Company have been duly authorized and validly issued, are fully paid and nonassessable and are owned beneficially and of record, directly or indirectly, by the Company free and clear of all liens, claims or encumbrances whatsoever. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were or any of its Subsidiaries was issued in violation of the preemptive or similar rights of any security holder securityholder arising by operation of such subsidiarylaw, under the articles of incorporation or bylaws of the Company or its Subsidiaries or under any agreement or obligation to which the Company or any of its Subsidiaries is a party or by which any of them are bound.
(civ) Except as disclosed in each preliminary prospectus and the Prospectus and the financial statements of the Company and the related notes thereto included in each preliminary prospectus and the Prospectus, neither the Company nor any of its Subsidiaries has outstanding any options or warrants to purchase, any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of its capital stock or any such options, warrants, rights, convertible securities or obligations. Except as described in the Registration Statement, each preliminary prospectus and Prospectus, there are no persons with registration rights or other similar rights to have any securities registered by the Company pursuant to the Registration Statement or otherwise registered by the Company under the Act.
(v) Except as disclosed in each preliminary prospectus and the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement, each preliminary prospectus and the Prospectus, neither the Company nor any of its Subsidiaries has incurred any liabilities or obligations, direct or contingent (including any off-balance sheet obligations or any “variable interest entities” within the meaning of Financial Accounting Standards Board Interpretation No. 46), or entered into any transactions, not in the ordinary course of business, that are material to the Company or its Subsidiaries taken as a whole, and there has not been any dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock, any material change in the capital stock, short-term debt or long-term debt of the Company, or any Material Adverse Effect.
(vi) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(dvii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary of its Subsidiaries is subject, or by which any property or asset of the Company or any subsidiary of its Subsidiaries is bound or affected; , except to the extent that any such non-compliance is not reasonably likely to result in a Material Adverse Effect, (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary of its Subsidiaries is a party of by which any property or asset of the Company or any subsidiary of its Subsidiaries is bound or affected; , except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate or any of incorporation its Subsidiaries’ articles of incorporation, articles of association, bylaws or bylaws, each as are presently in effect, except, in other equivalent organizational or governing documents except to the case of clauses (i) and (ii) above, as would extent that any such breach is not reasonably be expected likely to have result in a Material Adverse Effect.
(eviii) Neither the Company nor any of its Subsidiaries is in violation, breach or default under its articles of incorporation, articles of associations, bylaws or other equivalent organizational or governing documents except to the extent that any such breach is not reasonably likely to result in a Material Adverse Effect.
(ix) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries Subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than made except to the extent that such consents, approvals, orders and authorizations the failure of which to make or obtain inaction is not reasonably likely to result in a Material Adverse Effect.
(fx) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, are duly authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries Subsidiaries has filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensions, hereof or has duly obtained extensions of time for the filing thereof other than any which the Company or any of its Subsidiaries is contesting in good faith and (ii) each has been disclosed in the Registration Statement. Each of the Company and its subsidiaries Subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or and any such respective subsidiary, except for such Taxes, if any, Subsidiary other than any which are being contested the Company or any of its Subsidiaries is contesting in good faith and as to which adequate reserves have has been established by disclosed in the Company or such respective subsidiaries. Registration Statement.. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements. Except as disclosed in each preliminary prospectus and the Prospectus, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims (A) no issues have been made against raised (and are currently pending) by any taxing authority in connection with any of the returns or Taxes asserted as due from the Company or any of its subsidiaries Subsidiaries and (which are currently pendingB) by any Taxing authority in connection with Tax Returns or Taxes of the Company or its subsidiaries, and no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes have been given by or requested from the Company or any of its subsidiaries that are currently in forceSubsidiaries. The term “Taxes” mean means all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be as used in this Section 3(x) filed with any Governmental Entity in respect of Taxesto taxes.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the UnderwritersUnderwriter, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation and each of the Company’s subsidiaries is in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the requisite corporate power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; affected except to the extent that such violations is not reasonably likely to result in a Material Adverse Effect, (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate articles of incorporation or bylawsby-laws.
(iv) Neither the Company nor any of its subsidiaries is in violation, each as are presently in effectbreach or default under its articles of incorporation, exceptby-laws or other equivalent organizational or governing documents, except where the violation, breach or default in the case of clauses (i) and (ii) above, as would a subsidiary of the Company is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or other rights to subscribe for or to purchaserestricted stock in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or any subsidiary of the Companysimilar rights.
(hvii) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensions, and (ii) each hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for any such Taxes, if any, which are taxes currently being contested in good faith and as is not reasonably likely to which adequate reserves have been established by the Company or such respective subsidiariesresult in a Material Adverse Effect. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements, except . Except as disclosed in writing to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims Underwriter, (i) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s indebtedness, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. To the knowledge of the Company, property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company and its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee that is reasonably likely to result in a Material Adverse Effect.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company, its subsidiaries nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xviii) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to the Underwriter or the sale of the Shares hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may constitute Items of Value (as defined under the Rules and Regulations of FINRA) to the Underwriter or another FINRA member.
(xx) Except for certain payments to Xxxxxxxx Xxxxx that have been disclosed to the Underwriter in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxi) None of the net proceeds of the offering will be paid by the Company to any participating FINRA member or any affiliate or associate of any participating FINRA member, except as specifically authorized herein.
(xxii) To the Company’s knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries (other than The Guardian Life Insurance Company of America) or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise the Underwriter and its counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect of Taxesthe offering.
(xxiii) Other than the Underwriter, no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the transactions contemplated hereby.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, and agrees with, the UnderwritersUnderwriter, except as set forth in the Registration Statement, the Time of Sale Disclosure Package or the date hereof and as of each Closing DateFinal Prospectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described described, as of the respective dates as of which information is provided, in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of businessits business makes such qualification necessary, except in each case, where the failure to be so qualify or be in good standing qualified would not have or be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, financial condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its the Company’s ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the corporate power and authority to enter into this Agreement and to issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws law and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate articles of incorporation or bylawsby-laws, each as are presently amended, except in effectthe case of clauses (A) and (B), to the extent not reasonably likely to result in a Material Adverse Effect.
(iv) Neither the Company nor any of its subsidiaries is in violation, breach or default under its articles of incorporation, by-laws or other equivalent organizational or governing documents, each as amended, except, in the case of clauses (i) and (ii) abovea subsidiary of the Company, as would to the extent the violation, breach or default is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than (A) any such consents, approvals, orders, authorizations and filings to be obtained or made after the date of this Agreement under the Securities Act, the Exchange Act, the Rules and Regulations and applicable state and foreign securities laws in connection with the offer and sale of the Shares, (B) the listing of the Shares on NASDAQ, and (C) such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in material compliance with all federal and state applicable securities laws, were not issued in violation and, as of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy the respective dates as of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized andinformation is provided, when issued, delivered and paid for conform in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms all material respects to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 issuances of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, options or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital restricted stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiariesordinary course of business and the Shares, would constitute a “significant subsidiary” since the respective dates as such term of which information is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included provided in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company any shares of the capital stock of the Company. The Shares, when issued and duly paid for as provided herein, will be duly authorized and validly issued, fully paid and nonassessable, and will be free of preemptive, registration or similar rights.
(vii) Each of the Company and its subsidiaries has (i) filed all accrued and unpaid Taxes, whether or not disputed, for all Tax periods returns (as hereinafter defined) required to be filed with taxing authorities prior to the date hereof or has duly obtained extensions of time for the filing thereof, and including the dates (ii) paid all taxes (as hereinafter defined) shown as due and payable on such returns that were filed, in each of such consolidated financial statementscases (i) and (ii), except (A) with respect to any taxes that are being contested in good faith and (B) to the extent of any inadequacy that would not reasonably likely to result in a Material Adverse Effect. No Except as disclosed to the Underwriter or its legal counsel, (i) no material claims issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect to taxes.
(viii) Since the respective dates as of Taxeswhich information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any material change in the number of outstanding shares of the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance, repurchase or forfeiture of restricted stock awards or restricted stock units under the Company’s existing stock awards plans, or any new grants thereof in the ordinary course of business, or the issuance of the Shares), (d) there has not been any material change in the outstanding principal amount of the Company’s long-term or short-term debt, and (e) there has not been any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, in each case, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described, as of the respective dates as of which information is provided, in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company and its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) that are material to the business of the Company and its subsidiaries as currently carried on and as described, as of the respective dates as of which information is provided, in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries of Intellectual Property will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Sarbanes- Oxley Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not knowingly directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company carries, or is covered by, insurance in such amounts and covering such risks as the Company believes is reasonable for the conduct of its business and the value of its properties.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, except for any such dispute that is not reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xviii) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) Except for this Agreement and the engagement letter, dated August 7, 2013, neither the Company nor any of its subsidiaries is party to any arrangements or understandings for services in the nature of a finder’s, consulting, underwriting or origination fee for the offer and sale of the Shares hereunder, and neither the Company nor any of its subsidiaries has paid any such fee with respect to the introduction of the Company to the Underwriter or for the offer and sale of the Shares hereunder.
(xx) [Intentionally omitted.]
(xxi) To the knowledge of the Company, based on the Company’s review of Schedules 13D and 13G filed with the Commission with respect to the outstanding Common Stock of the Company, there are no beneficial owners of 5% or more of the Company’s Common Stock, except for Xxxxxx Xxxxxxx Management L.P. and certain persons and entities affiliated therewith; Xxxxxx X. Xxxxxx; Xxxxxxx Xxxxx Xxxxxx; and Renaissance Technologies LLC. The Company will advise the Underwriter and its counsel if it becomes aware, prior to the Closing Date, that any beneficial owner of 5% or more of the Company’s Common Stock (other than Renaissance Technologies LLC) is or becomes a member of FINRA or an affiliate or associated person of a FINRA member.
(xxii) The Company has not issued any unregistered equity securities to any person during the 180-day period immediately preceding the date that the Company filed the Registration Statement with the Commission.
(xxiii) The Company does not have any current intention to direct any proceeds of the offering and sale of the Shares hereunder to a member of FINRA, except as provided herein.
(xxiv) Other than the Underwriter, the Company has not appointed or granted any right to any person to act as an underwriter or financial advisor to the Company with respect to the offer and sale of the Shares hereunder.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the Underwriters, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateFinal Prospectus, as follows:
(ai) The Company and each of its subsidiaries has been duly incorporated organized and is validly existing as a corporation corporation, limited liability company or, with respect to certain foreign subsidiaries, other form of entity, in good standing under the laws of the State its jurisdiction of Delawareincorporation or formation. The Company and each of its subsidiaries has the corporate corporate, limited liability company or other applicable entity power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is entity in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its the Company’s ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; affected except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s charter or bylaws.
(iv) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation incorporation, by-laws or bylawsother equivalent organizational or governing documents, each as are presently in effectexcept where the violation, except, breach or default in the case of clauses (i) and (ii) above, as would a subsidiary of the Company is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There Except for the Shares and the issuances of options or restricted stock in the ordinary course of business, since the respective dates as of which information is provided in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company any shares of the capital stock of the Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and free of preemptive, registration or similar rights.
(vii) Except as otherwise stated in the Registration Statement, in the Time of Sale Disclosure Package and in the Final Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylawsincorporation, each as presently in effect, by-laws or any agreement or other 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. Neither the filing of the Registration Statement nor the Offering or sale of the Shares as contemplated by this Agreement gives rise to any rights for or relating to the registration of any shares of Common Stock or other securities of the Company, other than such rights that have been waived.
(viii) Except as disclosed otherwise stated in the Registration Statement, in the Time of Sale Disclosure Package and in the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.entity.
(iix) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries has filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensions, and (ii) each hereof or has duly obtained extensions of time for the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against the Company or any of its subsidiaries (which are currently pending) by any Taxing authority in connection with Tax Returns or Taxes of the Company or its subsidiaries, and no waivers of statutes of limitation with respect to the assessment or payment of Taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxes” mean all federal, state, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxes.filing
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the Underwriters, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s charter or by-laws.
(iv) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation incorporation, by-laws or bylawsother equivalent organizational or governing documents, each as are presently in effectexcept where the violation, except, breach or default in the case of clauses (i) and (ii) above, as would a subsidiary of the Company is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued and conform in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms all material respects to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or restricted stock in the ordinary course of business, since the respective dates as of which information is provided in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to subscribe purchase or acquire from the Company any shares of the capital stock of the Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights.
(vii) The Company and its subsidiaries have timely filed all tax returns required to be filed, which returns are true and correct in all material respects, and the Company and its subsidiaries have paid all taxes (including any assessments, fines or penalties) required to be paid by them, except for any such taxes, assessments, fines or penalties currently being contested in good faith and that are not reasonably likely to purchaseresult in a Material Adverse Effect.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any restriction upon material transactions other than in the voting ordinary course of business, (b) the Company has not declared or transfer of, paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock pursuant due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s certificate of incorporation or bylaws, each as presently in effectexisting stock awards plan, or any agreement new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or other instrument short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or by of which any property or assets of the Company is bound. Except as disclosed the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there Prospectus as being owned by them that are no options, warrants, agreements, Contracts or other rights in existence material to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary business of the Company.
(h) Except for the entities set forth on Exhibit 21.1 , in each case free and clear of the Company’s Annual Report on Form 10-K for the year ended December 31all liens, 2020claims, security interests, other encumbrances or as subsequently disclosed defects, except those that are not reasonably likely to result in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company and its subsidiaries.
(ixii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown currently carried on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. To the knowledge of the Company, no action or use by the Final Prospectus are sufficient for all accrued and unpaid TaxesCompany or any of its subsidiaries will involve or give rise to any infringement of, whether or not disputedlicense or similar fees for, for all Tax periods prior to and including the dates any Intellectual Property of such consolidated financial statementsothers, except where such action, use, license or fee is not reasonably likely to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (which are “OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently pendingsubject to any U.S. sanctions administered by OFAC.
(xv) by any Taxing authority The Company carries, or is covered by, insurance in connection such amounts and covering such risks as is reasonable for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with Tax Returns or Taxes the employees of the Company or any of its subsidiariessubsidiaries exists or, and no waivers of statutes of limitation with respect to the assessment knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xviii) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) Other than as contemplated by this Agreement, the Company has not incurred any liability for any finder’s or broker’s fee or agent’s commission or the payment of Taxes have been given by any other fee to any third party in connection with the execution and delivery of this Agreement or requested from the Company or its subsidiaries that are currently in force. The term “Taxes” mean all federal, state, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges consummation of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxestransactions contemplated hereby.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the Underwriters, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the date hereof and as of each Closing DateProspectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s charter or by-laws.
(iv) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation incorporation, by-laws or bylawsother equivalent organizational or governing documents, each as are presently in effectexcept where the violation, except, breach or default in the case of clauses (i) and (ii) above, as would a subsidiary of the Company is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued and conform in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms all material respects to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or restricted stock in the ordinary course of business, since the respective dates as of which information is provided in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to subscribe purchase or acquire from the Company any shares of the capital stock of the Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights.
(vii) The Company and its subsidiaries have implemented and maintain disclosure controls and procedures (as defined un Rules 13a-15(e) and 15d-15(e) under the Exchange Act), and such controls and procedures are effective to ensure that (A) all material information required to be disclosed by the Company in the reports that it files under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, and (B) all such information is accumulated and communicated to the Company’s management, including its principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure.
(viii) The Company and its subsidiaries have implemented and maintain a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including, without limitation, that (A) transactions are executed in accordance with management’s general or specific authorizations, (B) transactions are recorded as necessary to purchasepermit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (C) access to assets is permitted only in accordance with management’s general or specific authorization, and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(ix) The Company and its subsidiaries have timely filed all tax returns required to be filed, which returns are true and correct in all material respects, and the Company and its subsidiaries have paid all taxes (including any assessments, fines or penalties) required to be paid by them, except for any such taxes, assessments, fines or penalties currently being contested in good faith and that are not reasonably likely to result in a Material Adverse Effect.
(x) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (A) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any restriction upon material transactions other than in the voting ordinary course of business, (B) the Company has not declared or transfer of, paid any dividends or made any distribution of any kind with respect to its capital stock; (C) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock pursuant due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s certificate of incorporation or bylaws, each as presently in effectexisting stock awards plan, or any agreement new grants thereof in the ordinary course of business), (D) there has not been any material change in the Company’s long-term or other instrument short-term debt, and (E) there has not been the occurrence of any Material Adverse Effect.
(xi) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or by of which any property or assets of the Company or its subsidiaries is bound. Except as disclosed the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(xii) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xiii) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there Prospectus as being owned by them that are no options, warrants, agreements, Contracts or other rights in existence material to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary business of the Company.
(h) Except for the entities set forth on Exhibit 21.1 , in each case free and clear of the Company’s Annual Report on Form 10-K for the year ended December 31all liens, 2020claims, security interests, other encumbrances or as subsequently disclosed defects, except those that are not reasonably likely to result in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company and its subsidiaries.
(ixiv) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown currently carried on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. To the knowledge of the Company, no action or use by the Final Prospectus are sufficient for all accrued and unpaid TaxesCompany or any of its subsidiaries will involve or give rise to any infringement of, whether or not disputedlicense or similar fees for, for all Tax periods prior to and including the dates any Intellectual Property of such consolidated financial statementsothers, except where such action, use, license or fee is not reasonably likely to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xv) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xvi) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (which are “OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently pendingsubject to any U.S. sanctions administered by OFAC.
(xvii) by any Taxing authority The Company carries, or is covered by, insurance in connection such amounts and covering such risks as is reasonable for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xviii) No labor dispute with Tax Returns or Taxes the employees of the Company or any of its subsidiariessubsidiaries exists or, and no waivers of statutes of limitation with respect to the assessment knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xix) Neither the Company nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xx) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xxi) Other than as contemplated by this Agreement, the Company has not incurred any liability for any finder’s or broker’s fee or agent’s commission or the payment of Taxes have been given by any other fee to any third party in connection with the execution and delivery of this Agreement or requested from the Company or its subsidiaries that are currently in force. The term “Taxes” mean all federal, state, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges consummation of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxestransactions contemplated hereby.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, and agrees with, the Underwriters, as of the date hereof and as of each Closing DateUnderwriter, as follows:
(ai) The Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State its jurisdiction of Delawareincorporation. The Company has the corporate power and authority to own, own or lease and operate its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have or be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries taken as a whole, or in its ability to perform its obligations under this Agreement (“Material Adverse Effect”), or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s charter or bylaws.
(iv) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation incorporation, bylaws or bylawsother equivalent organizational or governing documents, each as are presently in effectexcept where the violation, except, breach or default in the case of clauses (i) and (ii) above, as would a subsidiary of the Company is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessablenon-assessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or other rights to subscribe for or to purchaserestricted stock in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Shares, when issued, will be duly authorized and validly issued, fully paid and non-assessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or any subsidiary similar rights other than such rights as have been duly waived or satisfied.
(vii) Each of the Company.
, Speedy Brilliant Group Limited (hBVI), a British Virgin Islands company (the “BVI Subsidiary”) Except for and the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or PRC Entities (as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(iSection 4(a)(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ibelow) each of the Company and its subsidiaries has filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensions, and (ii) each hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements, except . Except as disclosed in writing to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims Underwriter, (A) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (B) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (A) neither the Company nor the BVI Subsidiary nor any of the PRC Entities has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (B) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (C) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (D) there has not been any material change in the Company’s long-term or short-term debt, and (E) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company, the BVI Subsidiary or any of the PRC Entities is a party or of which any property or assets of the Company, the BVI Subsidiary or any of the PRC Entities is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company, the BVI Subsidiary and each of the PRC Entities holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company, the BVI Subsidiary and each of the PRC Entities have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property described in the Registration Statement, the time of Sale Disclosure Package and the Prospectus as held under lease by the Company, the BVI Subsidiary or the PRC Entities is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company, the BVI Subsidiary or the PRC Entities.
(xii) The Company or the PRC Entities owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company, the BVI Subsidiary and each of the PRC Entities as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. To the knowledge of the Company, no action or use by the Company, the BVI Subsidiary or the PRC Entities will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor the BVI Subsidiary nor any of the PRC Entities has received any notice alleging any such infringement or fee.
(xiii) The Company, the BVI Subsidiary and each of the PRC Entities have complied with, are not in violation of, and have not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, and (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor the BVI Subsidiary nor any of the PRC Entities nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company, the BVI Subsidiary or any of the PRC Entities is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of the PRC Entities carry, or are covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries in the People’s Republic of China (the “PRC”).
(xvi) No labor dispute with the employees of the Company or any of the PRC Entities exists or, to the knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company, the BVI Subsidiary or any of the PRC Entities, nor to the Company’s knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xviii) No supplier, customer, distributor or sales agent of the PRC Entities has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to the Underwriter or the sale of the Shares hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect the Underwriter’s compensation, as determined by FINRA.
(xx) Except as disclosed to the Underwriter in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (A) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (B) any FINRA member, or (C) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxi) None of the net proceeds of the offering will be paid by the Company to any participating FINRA member or any affiliate or associate of any participating FINRA member, except as specifically authorized herein.
(xxii) To the Company’s knowledge, no (A) officer or director of the Company or its subsidiaries, (B) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (C) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise the Underwriter and its counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect of Taxesthe offering.
(xxiii) Other than the Underwriter, no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the transactions contemplated hereby.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, and agrees with, the UnderwritersPlacement Agents and each of them, except as set forth in the Registration Statement, the Time of Sale Disclosure Package, the date hereof Final Prospectus and as of each Closing Datethe attached Schedule 4, as follows:
(ai) The Company has and each of its subsidiaries have been duly incorporated organized and each is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, its business makes such qualification necessary except where the failure to so qualify or be in good standing would not have or be reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The Except as set forth in Schedule 4, the execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of or by which any property or asset of the Company or any subsidiary is bound or affected; affected except to the extent such conflict, violation, breach, default, or right of termination, amendment, acceleration or cancellation is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effect.
(eiv) All Except as set forth in Schedule 4, all consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or other rights to subscribe for or to purchaserestricted stock in the ordinary course of business, or any restriction upon since the voting or transfer of, any shares respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company Company. The Shares, when issued and paid for pursuant to this Agreement, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and free of preemptive, registration or any subsidiary similar rights. The Warrants constitute valid and binding obligations of the Company. The Warrant Shares, when issued in accordance with the terms of the Warrants, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and free of preemptive, registration or similar rights.
(hvi) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange ActOther than its subsidiaries, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.entity.
(ivii) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries has filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereofhereof or has duly obtained extensions of time for the filing thereof. Except as set forth in Schedule 4, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements. Except as set forth on Schedule 4, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims (i) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries that are currently in forcesubsidiaries. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the conversion of the Company’s Senior Secured Convertible Notes due April 1, 2019, exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) Except as set forth in Schedule 4, there is not pending or, to the Knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) Except as set forth in Schedule 4, the Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company or its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. To the Knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice alleging any such infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) except as disclosed in the Company’s filings with the Commission, the Sxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the Knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the Offering of the Units contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) Except as set forth in Schedule 4, the Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation, bylaws or other equivalent organizational or governing documents, except where the violation is not reasonably likely to result in a Material Adverse Effect.
(xviii) Neither the Company, its subsidiaries nor, to its Knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xix) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such decrease is not reasonably likely to result in a Material Adverse Effect.
(xx) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to Rxxx or the sale of the Units hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect Rxxx’x compensation, as determined by FINRA.
(xxi) Except as set forth on Schedule 4, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member, within the 180 day period prior to the date on which the preliminary prospectus supplement was filed with the Commission (“Filing Date”) or thereafter.
(xxii) To the Company’s Knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member. The Company will advise Rxxx and its counsel if it becomes aware that any officer, director or stockholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a FINRA member participating in respect the Offering.
(xxiii) Other than the Placement Agents, no person has the right to act as a placement agent, underwriter or as a financial advisor in connection with the sale of Taxesthe Units contemplated hereby.
Appears in 1 contract
Samples: Placement Agency Agreement (Real Goods Solar, Inc.)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the UnderwritersUnderwriter, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, as of the date hereof and as of each Closing Datehereof, as follows:
(ai) The Each of the Company and its significant subsidiaries, as defined in Rule 1.02 of Regulation S-X (each, a “Subsidiary,” and collectively, the “Subsidiaries”), has been duly incorporated organized and is validly existing as a corporation an entity in good standing under the laws of its jurisdiction of organization, except where the State failure to be in good standing would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect (as defined below). Each of Delaware. The the Company and its Subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon (x) the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in (y) its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any material law, order, rule or regulation to which the Company or any subsidiary Subsidiary is subject, or by which any material property or asset of the Company or any subsidiary Subsidiary is bound or affected; bound, (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any material agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary Subsidiary is a party of by which any property or asset of the Company or any subsidiary Subsidiary is bound bound, except to the extent that such conflict, default, termination, amendment, acceleration or affected; cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, in the case of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effectby-laws.
(eiv) Neither the Company nor any of its Subsidiaries is in violation, breach or default under its certificate of incorporation, by-laws or other equivalent organizational or governing documents.
(v) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries Subsidiaries (except as may be required under the Exchange Act, the Securities Act, the Rules or Regulations or blue sky laws or by the Financial Industry Regulatory Authority (“FINRA”)) in connection with the execution, delivery or performance of this Agreement by the Company have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is would not reasonably likely be expected, individually or in the aggregate, to have or result in a Material Adverse Effect.
(fvi) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were except for non-compliance that is not issued reasonably likely to result in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized andMaterial Adverse Effect, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms conform to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe Except for or to purchasethe issuances of options, stock appreciation rights, restricted stock units, or any restriction upon restricted stock in the voting or transfer ofordinary course of business, any shares since the respective dates as of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company information is a party or by which the Company is bound. Except as disclosed provided in the Registration Statement, the Time of Sale Disclosure Package and or the Final Prospectus, there are no the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, Contracts contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(hvii) Except Each of the Company and its Subsidiaries has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to the date hereof or has duly obtained extensions of time for the entities set forth filing thereof and has paid all taxes (as hereinafter defined) shown as due on Exhibit 21.1 of such returns that were filed and has paid all taxes imposed on or assessed against the Company’s Annual Report on Form 10-K Company or such respective Subsidiary, except in each case for the year ended December 31, 2020taxes currently being contested in good faith, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as that would not, individually or in the aggregate, reasonably be expected to have result in a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in incorporated into the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy for deficiencies that would not result not, individually or in the aggregate, have a Material Adverse Effect. No material claims have been made against the Company or any of its subsidiaries (which are currently pending) by any Taxing authority in connection with Tax Returns or Taxes of the Company or its subsidiaries, and no waivers of statutes of limitation with respect to the assessment or payment of Taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges taxes of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect to taxes.
(viii) Since the respective dates as of Taxeswhich information is given in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company (other than a change in the number of outstanding shares of Common Stock due to the forfeiture of equity awards, the issuance of shares upon the exercise of outstanding options, stock appreciation rights or warrants or the issuance or settlement of restricted stock awards or restricted stock units under the Company’s existing or prior equity award plans, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, other than in the ordinary course of business and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its Subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which individually or in the aggregate, is reasonably expected to result in a Material Adverse Effect.
(x) The Company and its Subsidiaries hold, and are in compliance with, all material franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, in each case except where the failure to hold, or comply with, any such Permits is not reasonably likely to result in a Material Adverse Effect. To the knowledge of the Company, all such Permits are in full force and effect.
(xi) The Company and its Subsidiaries have good and marketable title to all tangible property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its Subsidiaries is held by them under valid, subsisting and enforceable leases, except those that are not likely to result in a Material Adverse Effect.
(xii) The Company and its Subsidiaries own or possess or have valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) reasonably necessary for the conduct of the business of the Company and its Subsidiaries as currently carried on and as described in or incorporated by reference into the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, except those that are not reasonably likely to result in a Material Adverse Effect. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of any Intellectual Property of others, except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any notice alleging such infringement, except those that, if the subject of an unfavorable decision, would, individually or in the aggregate, not result in a Material Adverse Effect.
(xiii) The Company and each of its Subsidiaries has complied with, is not in violation of, and has not received any notice of violation relating to any law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation, (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”) and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(xv) Except as would not reasonably be expected to result in a Material Adverse Effect, the Company and each of its Subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Except as would not reasonably be expected to result in a Material Adverse Effect, (A) none of the Company, its subsidiaries or, to the best of the Company’s knowledge, any other party is in violation, breach or default of any Contract, and (B) no event has occurred that, with notice or lapse of time or both, would constitute such a violation, breach or default of any Contract by the Company or its subsidiaries.
(xviii) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such discontinuance or decrease is not reasonably likely to result in a Material Adverse Effect.
(xix) The Company has no actual knowledge, without having made any inquiry, that any officer or director of the Company or its Subsidiaries has any direct or indirect affiliation or association with the Underwriter or any affiliate of the Underwriter.
(xx) The Company and its consolidated Subsidiaries maintain a system of internal accounting controls designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with United States generally accepted accounting principles. Since the end of the Company’s most recent audited fiscal year, there has been (I) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (II) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(xxi) The Company and its consolidated Subsidiaries employ disclosure controls and procedures that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits with the Commission under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding disclosure.
(xxii) The Registration Statement, the Time of Sale Disclosure Package and the Prospectus, list all subsidiaries of the Company required to be so listed by Rule 601 of Regulation S-K.
(xxiii) There are no business relationships or related-party transactions involving the Company or any subsidiary required by Rule 404 of Regulation S-K to be disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus that have not been so disclosed.
(xxiv) The Company has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares contemplated by this Agreement other than any Preliminary Prospectus, the Time of Sale Disclosure Package or the Prospectus or other materials permitted by the Securities Act to be distributed by the Company.
Appears in 1 contract
Samples: Underwriting Agreement (D. E. Shaw Laminar Portfolios, L.L.C.)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, the Underwriters, as of the date hereof and as of the Closing Date (as defined in Section 4(c) below) and as of each Option Closing DateDate (as defined in Section 4(b) below), except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation or other entity in good standing under the laws of its jurisdiction of organization. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority (corporate or otherwise) to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is or other entity in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”). Except for those of the Company’s subsidiaries set forth on Schedule III attached hereto, none of the Company’s subsidiaries is a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares by the Company. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent such breach, violation or default is not reasonably likely to have a Material Adverse Effect, (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) (a “Default Acceleration Event”) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of or by which any property or asset of the Company or any subsidiary is bound or affected; , except to the extent that such conflict, default or Default Acceleration Event is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate articles of incorporation incorporation, as amended, or bylawsby-laws, each as are presently amended.
(iv) Neither the Company nor any of its subsidiaries is in effectviolation, exceptbreach or default under its articles of incorporation, as amended, by-laws, as amended, or other equivalent organizational or governing documents, except where the violation, breach or default in the case of clauses (i) and (ii) above, as would a subsidiary of the Company is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) All No consents, approvals, orders, authorizations and or filings are required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or madeAgreement, other than except (A) the registration under the Securities Act of the Shares, (B) such consents, approvals, orders authorizations, registrations or qualifications as may be required under state or foreign securities or Blue Sky laws and the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) in connection with the purchase and distribution of the Shares by the Underwriters, (C) the necessary filings and approvals from the NASDAQ Capital Market to list the Shares and (D) such consents, approvals, orders, authorizations and filings the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(f) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, are duly authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the Company and its subsidiaries has filed all federal, state, local and non-U.S. Tax Returns (as hereinafter defined) required by law to be filed with a Taxing authority prior to the date hereof, subject to permitted extensions, and (ii) each of the Company and its subsidiaries has paid all Taxes (as hereinafter defined), which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against the Company or any of its subsidiaries (which are currently pending) by any Taxing authority in connection with Tax Returns or Taxes of the Company or its subsidiaries, and no waivers of statutes of limitation with respect to the assessment or payment of Taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxes” mean all federal, state, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxes.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees with, Xxxx, except as set forth in the UnderwritersRegistration Statement, as the Time of Sale Disclosure Package and the date hereof and as of each Closing DateFinal Prospectus, as follows:
(ai) The Company and each of its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State its jurisdiction of Delawareincorporation. The Company and each of its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the corporate power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument or binding obligation or other binding understanding (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; , or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation charter or bylaws, each as are presently in effect, except, except in the case of clauses (iA) and (iiB) abovesuch breaches, as would violations, defaults, or conflicts which do not individually or in the aggregate be reasonably be expected likely to have result in a Material Adverse Effect.
(eiv) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fv) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in material compliance with all federal and state applicable securities laws, were not issued and conform in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms all material respects to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There are no preemptive rights Except for the issuances of options or restricted stock or restricted stock units in the ordinary course of business, since the respective dates as of which information is provided in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to subscribe for purchase or to purchase, or any restriction upon acquire from the voting or transfer of, Company any shares of Common Stock pursuant to the capital stock of the Company’s certificate . The Shares, when issued, will be duly authorized and validly issued, fully paid and nonassessable, issued in material compliance with all applicable securities laws, and free of incorporation preemptive, registration or bylaws, each as presently in effect, or any agreement or other instrument to which the Company is a party or by which the Company is bound. similar rights.
(vi) Except as disclosed set forth in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except Prospectus and except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange ActSilvaGas Corporation, the Company does not own, directly or indirectly, any a majority of the capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.entity.
(ivii) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries has filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensions, and (ii) each hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown on such returns that were filed Tax Returns or and has paid all taxes imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient for all accrued and unpaid Taxes, whether or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statements, except to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims have been made against the Company or any of its subsidiaries (which are currently pending) by any Taxing authority in connection with Tax Returns or Taxes of the Company or its subsidiaries, and no waivers of statutes of limitation with respect to the assessment or payment of Taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxestaxes” mean all federal, state, local, non-U.S.foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kindkind whatever, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returnsreturns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, direct or contingent, required to be reflected on a balance sheet in accordance with generally accepted accounting principles, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the issuance of restricted stock awards or restricted stock units under the Company’s existing stock awards plan, or any new grants thereof in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term debt, and (e) there has not been the occurrence of any Material Adverse Effect.
(ix) There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which is reasonably likely to result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders (“Permits”) of any governmental or self-regulatory agency, authority or body required for the conduct of its business, and all such Permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except those that are not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company or its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses or has valid right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, except those the absence of which are not reasonably likely to result in a Material Adverse Effect. To the knowledge of the Company, no action or use by the Company or any of its subsidiaries will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property of others, except where such action, use, license or fee is not reasonably likely to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any written notice alleging any such material infringement or fee.
(xiii) The Company and each of its subsidiaries has complied with, is not in violation of, and has not received any written notice of violation relating to any applicable law, rule or regulation relating to the conduct of its business, or the ownership or operation of its property and assets, including, without limitation (to the extent applicable), (A) the Currency and Foreign Transactions Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (B) any laws, rules or regulations related to health, safety or the environment, including those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder, (D) the Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E) the Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, in each case except where the failure to be in compliance is not reasonably likely to result in a Material Adverse Effect.
(xiv) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee, representative, agent or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the Offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xv) The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is customary for companies engaged in similar businesses in similar industries.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that is reasonably likely to result in a Material Adverse Effect.
(xvii) Neither the Company nor any of its subsidiaries is in violation, breach or default under its certificate of incorporation, bylaws or other equivalent organizational or governing documents, except where the violation is not reasonably likely to result in a Material Adverse Effect.
(xviii) Neither the Company, its subsidiaries nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(xix) No supplier, customer, distributor or sales agent of the Company has notified the Company that it intends to discontinue or decrease the rate of business done with the Company, except where such discount or decrease is not reasonably likely to result in a Material Adverse Effect.
(xx) There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s, consulting or origination fee with respect to the introduction of the Company to Xxxx or the sale of the Shares hereunder or any other arrangements, agreements, understandings, payments or issuances with respect to the Company to which the Company is a party that, to the knowledge of the Company, will affect Xxxx’x compensation, as determined by FINRA.
(xxi) Except as disclosed to Xxxx in writing, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or association with any Governmental Entity FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the Commission (“Filing Date”) or thereafter.
(xxii) To the Company’s knowledge, no (i) officer or director of the Company or its subsidiaries, (ii) owner of 5% or more of the Company’s unregistered securities or that of its subsidiaries or (iii) owner of any amount of the Company’s unregistered securities acquired within the 180-day period prior to the Filing Date, has any direct or indirect affiliation or association with any FINRA member.
(xxiii) Other than Xxxx, no person has the right to act as a placement agent, underwriter or as a financial advisor in respect of Taxesconnection with the Offering contemplated hereby.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, and agrees with, each of the Underwriters, except as set forth in the Time of the date hereof and as of each Closing DateSale Disclosure Package, as follows:
(ai) The Company has been duly incorporated and incorporated, is validly existing as a corporation in good standing under the laws of the State jurisdiction of Delaware. The Company its incorporation, has the corporate power and authority to own, lease and operate own its properties property and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Exhibit 1.1 Package and the Final Prospectus, Prospectus and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of businessits business or its ownership or leasing of property requires such qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not (A) have or be reasonably likely to result in a material adverse effect upon on the assets, business, prospects, properties, operations, condition (financial or otherwise), results of operation or prospects of Company, (B) prevent or materially interfere with consummation of the transactions contemplated hereby, or (C) result in the delisting of shares of Common Stock from NASDAQ (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (A), (B) or results of operations of the Company and its subsidiaries, taken (C) being herein referred to as a whole, or in its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(bii) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(c) The Company has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(diii) The execution, delivery authorized and performance of this Agreement and the consummation of the transactions herein contemplated will not: (i) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset outstanding capitalization of the Company or any subsidiary is bound or affected; (ii) conflict withas set forth in the Time of Sale Disclosure Package and will be as set forth in the Prospectus, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; or (iii) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation or bylaws, each as are presently in effect, exceptsubject, in each case, to the case issuance of clauses (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effect.
(e) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(f) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorizedupon exercise of stock options and warrants disclosed as outstanding in the Time of Sale Disclosure Package and the Prospectus, of which 92,743,677 shares were issued and outstandingas the case may be, and 10,000,000 the grant of stock options and restricted stock units and the issuance of shares of Preferred Common Stock authorizedupon the exercise of stock options and the vesting of restricted stock units under existing equity incentive plans described in the Time of Sale Disclosure Package and the Prospectus, none of which were issued and outstanding. All in each case as of the issued and outstanding shares of date specified therein. The authorized capital stock of the Company, including Company conforms and will conform as to legal matters to the outstanding description thereof contained in the Time of Sale Disclosure Package and the Prospectus.
(iv) The shares of Common StockStock outstanding prior to the issuance of the Securities to be sold by the Company have been duly authorized, are duly authorized and validly issued, fully paid and nonassessable, have been issued in material compliance with all federal applicable securities laws and state securities laws, were not issued in violation of or subject to any preemptive rights or similar rights. All prior offers and sales of securities by the Company were made in compliance in all material respects with the Securities Act and all other rights applicable laws and regulations.
(v) The Securities to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, issued and delivered and paid for in accordance with the terms of this Agreement, will have been be validly issued and will be issued, fully paid and nonassessable; , and the capital stock issuance of such Securities will not be subject to any preemptive or similar rights.
(vi) Neither the execution and delivery by the Company of, nor the performance by the Company of its obligations under, this Agreement will conflict with, contravene, result in a material breach or violation of, or imposition of any lien, charge or encumbrance upon any material assets of the Company pursuant to, or constitute a material default under (A) any applicable statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or any subsidiary; (B) the articles of incorporation or bylaws of the Company; or (C) any contract, including agreement, obligation, covenant or instrument required to be filed by the Common StockCompany with the Commission pursuant to Item 601(b)(10) of Regulation S-K.
(vii) No approval, conforms authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, NASDAQ), or approval of the Company’s stockholders, is required in connection with the issuance and sale of the Securities or the consummation of the transactions contemplated hereby, other than (A) registration of the Securities under the Securities Act, which has been effected (or, with respect to the description thereof in the any Rule 462 Registration Statement, will be effected in accordance Rule 462(b) under the Time Securities Act), (B) any necessary qualification under the securities or blue sky laws of Sale Disclosure Package and the Final Prospectus. various jurisdictions in which the Securities are being offered by the Underwriters, (C) under the Exhibit 1.1 FINRA Conduct Rules.
(viii) There are no preemptive rights actions, suits, claims, investigations or other rights to subscribe for or to purchaseproceedings pending or, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylawsknowledge, each as presently in effect, or any agreement or other instrument threatened to which the Company or any of its directors or officers is or would be a party or of which any of its material properties is or would be subject at law or in equity, before or by which the Company is bound. Except as disclosed in the Registration Statementany federal, the Time of Sale Disclosure Package and the Final Prospectusstate, there are no optionslocal or foreign governmental or regulatory commission, warrantsboard, agreementsbody, Contracts authority or agency, or before or by any self-regulatory organization or other rights in existence non-governmental regulatory authority (including, without limitation, NASDAQ) other than (A) any such action, suit, claim, investigation or proceeding which, if resolved adversely to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or (iB) any such action, suit, claim, investigation or proceeding that is, or is required to be, described in the Time of Sale Disclosure Package or the Prospectus and is not accurately described in the Time of Sale Disclosure Package and the Prospectus.
(ix) The Company (A) is in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (B) has received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business and (C) is in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not reasonably be expected to have a Material Adverse Effect. The Company is not liable for any costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would reasonably be expected to have a Material Adverse Effect.
(x) Except as disclosed in the Company’s reports (including the exhibits thereto) filed with the Commission, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Securities registered pursuant to the Registration Statement that have not been satisfied or effectively waived with respect to the issuance of the Securities.
(xi) Subsequent to the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, (A) there has not occurred any Material Adverse Effect; and (B) the Company has not purchased any of its outstanding capital stock (except in connection with the payment of the exercise price of, or withholding taxes for, awards under the Company’s equity incentive plans), nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock other than ordinary and its subsidiaries customary dividends and (D) there has filed not been any material change in the capital stock, short-term debt or long-term debt of the Company, except in each case as described in any of the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, respectively.
(xii) The Company has good and marketable title in fee simple to all federalreal property and good and marketable title to all personal property owned by it that is material to the business of the Company, statein each case free and clear of all liens, local encumbrances and non-U.S. Tax Returns (defects, except such as hereinafter defined) required would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and any real property held under lease by law the Company is held by it under a valid, subsisting and enforceable lease with such exceptions as are not material and do not interfere with the use made and Exhibit 1.1 proposed to be filed with made of such property and buildings by the Company, in each case except as would not reasonably be expected, individually or in the aggregate, to have a Taxing authority prior to Material Adverse Effect.
(xiii) The Company owns or possesses all inventions, patent applications, patents, trademarks (both registered and unregistered), trade names, service names, copyrights, trade secrets and other proprietary information described in the date hereofRegistration Statement, subject to permitted extensionsthe Time of Sale Disclosure Package and the Prospectus as being owned or licensed by it or which is necessary for the conduct of, or material to, its businesses as currently conducted (collectively, the “Intellectual Property”), and (iiA) each there are no third parties who have or, to the Company’s knowledge, will be able to establish material ownership rights to any Intellectual Property, except for, and to the extent of, the ownership rights of the Company owners of the Intellectual Property which the Registration Statement, the Time of Sale Disclosure Package and its subsidiaries has paid all Taxes the Prospectus disclose is licensed to the Company; (as hereinafter defined)B) to the knowledge of the Company, there is no infringement by third parties of any Intellectual Property, which are due and payable, shown on such filed Tax Returns or imposed on or assessed against the Company or such respective subsidiary, except for such Taxes, if any, which are being contested in good faith and as infringement is required to which adequate reserves have been established by the Company or such respective subsidiaries. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes payable, if any, shown on the financial statements filed with or included be disclosed in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus are sufficient and is not so disclosed; (C) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s rights in or to any Intellectual Property, and the Company is unaware of any facts which could form a reasonable basis for all accrued and unpaid Taxesany such action, whether suit, proceeding or not disputed, for all Tax periods prior to and including the dates of such consolidated financial statementsclaim, except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus; (D) there is no pending or, to the extent Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity, enforceability or scope of any inadequacy Intellectual Property, except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus; (E) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company infringes or otherwise violates any patent, trademark, trade name, service name, copyright, trade secret or other proprietary rights of others; and (F) the Company has complied with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company, and all such agreements are in full force and effect, except as such failure to comply or be in full force and effect would not reasonably be expected to result in a Material Adverse Effect. .
(xiv) No material claims have been made against labor dispute with the employees of the Company or exists, except as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, or, to the knowledge of the Company, is imminent; and the Company is not aware of any existing labor disturbance by the employees of any of its subsidiaries (which are currently pending) by principal suppliers, manufacturers or contractors that would reasonably be expected to have a Material Adverse Effect. The Company is not in violation of any Taxing authority in connection with Tax Returns or Taxes provision of the Employee Retirement Income Security Act of 1974, as amended, or the rules and regulations promulgated thereunder, except for such violations as would not reasonably be expected to have a Material Adverse Effect.
(xv) The Company is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged; since January 1, 2014, the Company has not been refused any insurance coverage sought or applied for; and the Company has no reason to believe that it will not be able to renew its subsidiariesexisting insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a Material Adverse Effect.
(xvi) The Company possesses all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its businesses, and no waivers the Company has not received any notice of statutes of limitation with respect proceedings relating to the assessment revocation or payment of Taxes have been given by or requested from the Company or its subsidiaries that are currently in force. The term “Taxes” mean all federal, state, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges modification of any kindsuch certificate, authorization or permit which, singly or in the nature aggregate, if the subject of an unfavorable decision, ruling or finding, would have a tax, imposed by any Governmental Entity Material Adverse Effect.
(xvii) The Company maintains “internal control over financial reporting” (as hereinafter defineddefined in Rules 13a-15 and 15d-15 under the Exchange Act) together in compliance with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect the requirements of Taxes.the Exhibit 1.1
Appears in 1 contract
Samples: Underwriting Agreement (Viggle Inc.)
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY. (a) The Company represents and warrants to, to and agrees withwith the several Underwriters, except as set forth in the Registration Statement, the UnderwritersTime of Sale Disclosure Package and the Prospectus, as of the date hereof and as of each the Closing Date, as follows:
(ai) The Each of the Company and its subsidiaries has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and its subsidiaries has the corporate power and authority to own, lease and operate own its properties and to conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership of it owns or leases real property or in which the conduct of business, except where its business makes such qualification necessary and in which the failure to so qualify or be in good standing would not have or be is reasonably likely to result in a material adverse effect upon the business, prospects, assets, properties, operations, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, or in its the Company’s ability to perform its obligations under this Agreement (a “Material Adverse Effect”).
(b) Each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or limited liability company in good standing under the laws of the State of Delaware, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as currently being carried on and as described in Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and is duly qualified to transact business and is in good standing in, each jurisdiction in which such qualification is required, whether by reason of the ownership of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of, or other equity interest in each subsidiary has been duly authorized and validly issued, is fully paid (in the case of an interest in a limited liability company, to the extent required under the organizational documents of such subsidiary) and nonassessable (except, in the case of subsidiaries that are limited liability companies, as such nonassessability may be limited by the Delaware Limited Liability Company Act), and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for any such security interest, mortgage, pledge, lien, encumbrance, claim or equity created or existing pursuant to the Company’s credit agreement (the “Credit Agreement”), dated December 17, 2020, among the Company, as borrower, Fifth Third Bank, National Association, as administrative agent, and the lenders from time to time party thereto. None of the outstanding shares of capital stock of, or other equity interests in, any subsidiary of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(cii) The Company has the corporate power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated by this Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws law and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity. Other than its direct and indirect subsidiaries listed on Schedule III hereto, the Company does not own or control, directly or indirectly, any interest in any corporation, partnership, limited liability partnership, limited liability corporation, association or other entity.
(diii) The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not: not (iA) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or asset of the Company or any subsidiary is bound or affected; , (iiB) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or obligation or other understanding to which the Company or any subsidiary is a party of by which any property or asset of the Company or any subsidiary is bound or affected; affected except to the extent that such conflict, default, termination, amendment, acceleration or cancellation right is not reasonably likely to result in a Material Adverse Effect, or (iiiC) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s certificate of incorporation or bylawsby-laws, each as are presently amended.
(iv) Neither the Company nor any of its subsidiaries is in effectviolation, exceptbreach or default under its certificate of incorporation, by-laws or other equivalent organizational or governing documents, each as amended, except where the violation, breach or default in the case of clauses (i) and (ii) above, as would a subsidiary of the Company is not reasonably be expected likely to have result in a Material Adverse Effect.
(ev) Neither the Company, its subsidiaries nor, to its knowledge, any other party is in violation, breach or default of any Contract that is reasonably likely to result in a Material Adverse Effect.
(vi) All consents, approvals, orders, authorizations and filings required on the part of the Company and its subsidiaries in connection with the execution, delivery or performance of this Agreement have been obtained or made, other than such consents, approvals, orders and authorizations the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(fvii) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq Global Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of the Exchange for maintenance of inclusion of the Common Stock on the Exchange. When issued, the Shares will have been approved for listing on the Exchange, subject to official notice of issuance.
(g) As of August 5, 2021, the Company had 600,000,000 shares of Common Stock authorized, of which 92,743,677 shares were issued and outstanding, and 10,000,000 shares of Preferred Stock authorized, none of which were issued and outstanding. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all federal and state applicable securities laws, were not issued and conform in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters); the Shares which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable; and the capital stock of the Company, including the Common Stock, conforms all material respects to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. There Except for the Shares and the issuances of options or restricted stock in the ordinary course of business, since the respective dates as of which information is provided in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company any shares of the capital stock of the Company. The Shares, when issued and duly paid for as provided herein, will be duly authorized and validly issued, fully paid and nonassessable, issued in compliance with all applicable securities laws, and be free of preemptive, registration or similar rights. The Shares, when issued, will conform in all material respects to the descriptions thereof set forth in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus.
(viii) No person or entity has the right to require registration of shares of Common Stock or other securities of the Company or any of its subsidiaries because of the filing or effectiveness of the Registration Statement, except for persons and entities who have expressly waived such right in writing or who have been given timely and proper written notice and have failed to exercise such right within the time or times required under the terms and conditions of such right. Except as described in the Time of Sale Disclosure Package or in agreements filed as exhibits to the Initial Registration Statement, there are no persons with registration rights or similar rights to have any securities registered by the Company or any of its subsidiaries under the Securities Act.
(ix) The exercise price of each option issued under the Company’s stock option or other employee benefit plans has been no less than the fair market value of a share of common stock as determined on the date of grant of such option. All grants of options were validly issued and properly approved by the board of directors of the Company (or a duly authorized committee thereof) in material compliance with all applicable laws and regulations and recorded in the Company’s financial statements in accordance with GAAP and, to the Company’s knowledge, no such grants involved “back dating,” “forward dating” or similar practice with respect to the effective date of grant.
(x) The Company does not own any “margin securities” as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds of the sale of the Shares will be used, directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the Stock to be considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal Reserve Board.
(xi) Except as otherwise stated in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s certificate of incorporation or bylawsincorporation, each as presently in effect, by-laws or any agreement or other 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. Neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by this Agreement gives rise to any rights for or relating to the registration of any shares of Common Stock or other securities of the Company, other than such rights that have been waived.
(xii) Except as disclosed otherwise stated in the Registration Statement, in the Time of Sale Disclosure Package and in the Final Prospectus, there are no options, warrants, agreements, Contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company.
(h) Except for the entities set forth on Exhibit 21.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, or as subsequently disclosed in a Current Report on Form 8-K filed under the Exchange Act, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity that, individually or in the aggregate with all other unnamed subsidiaries, would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X.entity.
(ixiii) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Each of the Company and its subsidiaries (A) has timely filed all foreign, federal, state, state and local and non-U.S. Tax Returns returns (as hereinafter defined) required by law to be filed with a Taxing authority taxing authorities prior to the date hereof, subject to permitted extensionshereof or has duly obtained extensions of time for the filing thereof, and all such returns were true, complete and correct in all material respects, (iiB) each of the Company and its subsidiaries has paid all Taxes taxes (as hereinafter defined), which are ) shown as due and payable, shown payable on such filed Tax Returns or returns that were filed, including, without limitation, all sales and use taxes and all taxes which the Company is obligated to withhold from amounts owing to employees, creditors and third parties, and all taxes imposed on or assessed against the Company or such respective subsidiarysubsidiary and (C) does not have any tax deficiency or claims outstanding or assessed or, except for such Taxesto its knowledge, if any, which are being contested in good faith and as to which adequate reserves have been established by the Company or such respective subsidiariesproposed against it. The accruals, reserves or provisions made by the Company or its subsidiaries for Taxes taxes payable, if any, shown on the financial statements filed with or included in as part of the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus Statement are sufficient for all accrued and unpaid Taxestaxes, whether or not disputed, and for all Tax periods prior to and including the dates of such consolidated financial statements, except . Except as disclosed in writing to the extent of any inadequacy that would not result in a Material Adverse Effect. No material claims Representative, (i) no issues have been made against the Company or any of its subsidiaries raised (which and are currently pending) by any Taxing taxing authority in connection with Tax Returns any of the returns or Taxes of taxes asserted as due from the Company or its subsidiaries, and (ii) no waivers of statutes of limitation with respect to the assessment returns or payment collection of Taxes taxes have been given by or requested from the Company or its subsidiaries. Neither the Company nor its subsidiaries that are currently has engaged in forceany transaction which is a corporate tax shelter or which could be characterized as such by the Internal Revenue Service or any other taxing authority to which the Company or such subsidiary reports or by which it is governed. The term “Taxes” mean all federal, state, local, non-U.S., and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind, in the nature of a tax, imposed by any Governmental Entity (as hereinafter defined) together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “Tax Returns” means all returns, declarations, reports, statements, and other documents required to be filed with any Governmental Entity in respect of Taxes.term
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