REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants to the Subscriber that prior to the consummation of the Offering and at the Closing Date: (a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organized, existing and in good standing under the laws of its jurisdiction of incorporation and has the corporate power to conduct the business which it conducts and proposes to conduct. (b) The execution, delivery and performance of this Subscription Agreement by the Company will have been duly approved by the Board of Directors of the Company and all other actions required to authorize and effect the offer and sale of the Units and the Securities will have been duly taken and approved. (c) The Preferred Shares have been duly and validly authorized and when issued and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion of the Preferred Shares in accordance with their terms will be duly and validly issued and fully paid and nonassessable. (d) The Company will at all times have authorized and reserved a sufficient number of Conversion Shares (the "Reserved Shares") to provide for conversion of the Preferred Shares. (e) The Company and each Subsidiary has, to the best of the Company's knowledge, obtained, or is in the process of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its respective business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewith. (f) Neither the Company nor any Subsidiary is in violation of or default under, nor will the execution and delivery of this Subscription Agreement, the issuance of the Preferred Shares or the Agency Warrants (as hereinafter defined), the incurrence of the obligations set forth herein and therein and the consummation of the transactions contemplated hereby or thereby, result in a violation of, or constitute a default under, the Company's or any Subsidiary's certificate of incorporation or by-laws, any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to which
Appears in 1 contract
REPRESENTATIONS BY THE COMPANY. 2.1 1. The Company represents and warrants to the Subscriber that prior to the consummation of the Offering and at the Closing Dateas follows:
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organized, existing incorporated and in good standing under the laws of its jurisdiction the State of incorporation New York, is duly qualified and authorized to engage in business as a public utility in the State of New York, has the corporate power to conduct enter into, execute and deliver this Participation Agreement, the business which it conducts Tax Regulatory Agreement, and proposes to conduct.issue and deliver the Company Obligation and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement, the Insurance Agreement and the issuance and delivery of the Company Obligation;
(b) The execution, execution and delivery and performance of this Subscription Participation Agreement, the Tax Regulatory Agreement by and the Company will have been duly approved by the Board of Directors issuance and delivery of the Company Obligation and all other actions required to authorize and effect the offer and sale consummation of the Units and transactions herein contemplated will not conflict with or constitute a breach of or a default under the Securities will have been duly taken and approved.Company's Certificate of Incorporation or By-Laws or any material judgment, decree, order, statute, rule or regulation applicable to the Company or any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound;
(c) The Preferred Shares Participation Agreement, the Tax Regulatory Agreement and the Insurance Agreement have been duly executed and validly authorized delivered by the Company and when issued constitute valid and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion legally binding obligations of the Preferred Shares Company, enforceable against the Company in accordance with their terms will respective terms, except as enforcement may be duly and validly issued and fully paid and nonassessable.limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors' rights or contractual obligations generally or principles of equity or judicial discretion; and
(d) The Company will at all times have authorized All necessary authorizations or approvals required for the execution and reserved a sufficient number delivery of Conversion Shares (this Participation Agreement and the "Reserved Shares") to provide for conversion Tax Regulatory Agreement and the issuance of the Preferred SharesCompany Obligation have been obtained by the Company, including but not limited to the authorization of the Public Service Commission of the State of New York.
(e) The Company agrees to reimburse the Bond Insurer immediately and each Subsidiary hasunconditionally upon demand, to the best extent permitted by law, for all reasonable expenses, including attorneys' fees and expenses, incurred by the Bond Insurer in connection with (i) the enforcement by the Bond Insurer of the Company's knowledge, obtainedobligations, or is the preservation or defense of any rights of the Bond Insurer, under this Indenture and any other document executed in connection with the process issuance of obtainingthe Bonds, all licensesand (ii) any consent, permits and amendment, waiver or other governmental authorizations necessary action with respect to the conduct Indenture or any related document, whether or not granted or approved, together with interest on all such expenses from and including the date incurred to the date of payment at Citibank's Prime Rate plus 3% or the maximum interest rate permitted by law, whichever is less. In addition, the Insurer reserves the right to charge a fee in connection with its respective business; review of any such licensesconsent, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewithamendment or waiver, whether or not granted or approved .
(f) Neither The Company agrees not to use the Bond Insurer's name in any public document including, without limitation, a press release or presentation, announcement or forum without the Bond Insurer's prior consent. In the event that the Company is advised by counsel that it has a legal obligation to disclose the Bond Insurer's name in any press release, public announcement or other public document, the Company shall provide the Bond Insurer with at least three (3) business days' prior written notice of its intent to use the Bond Insurer's name together with a copy of the proposed use of the Bond Insurer's name and of any description of a transaction with the Bond Insurer and shall obtain the Bond Insurer's prior consent as to the form and substance of the proposed use of the Bond Insurer's name and any such description.
(g) The Company shall not enter into any agreement nor shall it consent to or participate in any Subsidiary is in violation arrangement pursuant to which Bonds are tendered or purchased for any purpose other than the redemption and cancellation or legal defeasance of such Bonds without the prior written consent of the Bond Insurer.
(h) The Company has corporate power to take all actions required or default permitted to be taken by the Company by or under, nor will and to perform and observe the execution covenants and delivery of this Subscription Agreementagreements on its part contained in, the issuance Indenture.
2. The representations and warranties of the Preferred Shares or the Agency Warrants (as hereinafter defined), the incurrence of the obligations Company set forth herein and therein and in the consummation of the transactions contemplated Tax Regulatory Agreement are hereby or thereby, result in a violation of, or constitute a default under, the Company's or any Subsidiary's certificate of incorporation or by-laws, any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichincorporated by reference as though fully set forth herein.
Appears in 1 contract
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants to the Subscriber that prior to the consummation of the Offering this offering and at the Closing Date:
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organized, existing and in good standing under the laws of its jurisdiction the State of incorporation Delaware and has the corporate power to conduct the business which it conducts and proposes to conduct.
(b) The execution, delivery and performance of this Subscription Agreement by the Company will have been duly approved by the Board of Directors of the Company and all other actions required to authorize and effect the offer and sale of the Units and the Securities securities contained therein will have been duly taken and approved.
(c) The Preferred Shares and Warrants have been duly and validly authorized and when issued and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion of the Preferred Shares in accordance with their terms will be duly and validly issued and fully paid and nonassessablenon assessable.
(d) The Company will at all times have authorized and reserved a sufficient number of Conversion Shares and Warrant Shares (collectively, the "Reserved Shares") to provide for conversion of the Preferred SharesShares and exercise of the Warrants.
(e) The Company and each Subsidiary has, to the best of the Company's its knowledge, obtained, or is in the process of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its respective business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewith; except where such failure to obtain such licenses, permits and other governmental authorizations necessary to the conduct of its business would not have a material adverse effect on the Company's business or financial condition.
(f) Neither The Company knows of no pending or threatened legal or governmental proceedings to which the Company nor any Subsidiary is a party which could materially adversely affect the business, property, financial condition or operations of the Company.
(g) The Company is not in violation of or default under, nor will the execution and delivery of this Subscription Agreement, the issuance of the Preferred Shares or the Agency Warrants (as hereinafter defined)Warrants, and the incurrence of the obligations set forth herein and therein set forth and the consummation of the transactions contemplated hereby herein or therebytherein contemplated, result in a violation of, or constitute a default under, the Company's or any Subsidiary's certificate articles of incorporation or by-laws, any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichwhich the Company is a party or by which it or any of its properties may be bound or any material order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign; except where such violation or default would not have a material adverse effect on the Company's business or financial condition.
(h) The financial information contained in the Memorandum presents fairly the financial condition of the Company as of the dates and for the periods indicated.
Appears in 1 contract
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents hereby represents, warrants and warrants covenants to the Subscriber that prior to the consummation as of the Offering date hereof and at as of the Closing Date:
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organized, existing and in good standing under the laws of its jurisdiction the State of incorporation Delaware and has the corporate power to conduct the business which it conducts and proposes to conduct.
(b) The execution, delivery and performance of this Subscription Agreement by the Company will have been duly approved by the Board of Directors of the Company and all other actions required to authorize and effect the offer and sale of the Units Preferred Shares and the Securities securities contained therein will have been duly taken and approved.
(c) The Preferred Shares have been duly and validly authorized and when issued and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion of the Preferred Shares in accordance with their terms will be duly and validly issued and fully paid and nonassessable.
(d) The Company will at all times have authorized and reserved a sufficient number of Conversion Shares (the "Reserved Shares") to provide for conversion of the Preferred Shares.
(e) The Company and each Subsidiary has, to the best of the Company's knowledge, obtained, or is in the process of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its respective business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewith.
(f) Neither the Company nor any Subsidiary is in violation of or default under, nor will the execution and delivery of this Subscription Agreement, the issuance of the Preferred Shares or the Agency Warrants (as hereinafter defined)Shares, the incurrence of the obligations set forth incurred by it herein and therein in the other Subscription Documents and the consummation of the transactions herein contemplated hereby or thereby, will not result in a violation of, or constitute a default under, the Company's or any Subsidiary's certificate of incorporation or by-laws, any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichwhich the Company is a party or by which it or any of its properties may be bound or any material order, law, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign, except where such violation or default would not have a material adverse effect on the Company's business or financial condition.
(d) The Preferred Shares and Warrants have been duly and validly authorized and when issued and paid for in accordance with the terms hereof, will be duly and validly issued, fully paid and nonassessable.
(e) The Company will at all times have authorized and reserved a sufficient number of Conversion Shares to provide for conversion of the Preferred Shares and the exercise of the Warrant.
(f) As of their respective dates, the Company's Annual Report on Form 10-KSB for the year ended December 31, 2003, as amended by Amendment No. 1 thereto on Form 10-KSB/A, and the Company's Quarterly Reports on Form 10-QSB for the quarters ended March 31, 2004, June 30, 2004 and September 30, 2004 (collectively, the "Company SEC Documents"): (a) complied as to form in all material respects with the applicable requirements of the Exchange Act and the respective rules and regulations adopted under such statute; and (b) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(g) The balance sheets, and statements of income, changes in cash flows and stockholders' equity contained in the Company SEC Documents fairly present the financial condition and results of operations of the Company as of their respective dates and for the periods presented, and have been prepared in accordance with generally accepted accounting principles applied on a basis consistent with prior periods (and, in the case of unaudited financial information, on a basis consistent with year-end audits). The financial statements included in the Company's Annual Report on Form 10-KSB for the year ended December 31, 2003 are as audited by, and include the related opinions of, Marcum & Kliegman LLP, the Company's independent certified public acxxxxxxnts. The financial information included in the Company's Quarterly Report on Form 10-QSB for the quarter ended September 30, 2004 is unaudited, but reflects all adjustments (including normally recurring accounts) which the Company considers necessary for a fair presentation of such information.
(h) Subsequent to its filing of its Quarterly Report on Form 10-QSB for the quarter ended September 30, 2004, the Company filed a Current Report on Form 8-K on November 23, 2004. The Company has not filed, and nothing has occurred with respect to which the Company would be required to file, any Current Report on Form 8-K since November 23, 2004. Prior to and until the Closing, the Company will provide to the Subscriber copies of any and all reports filed by the Company with the SEC after September 3, 2004.
Appears in 1 contract
Samples: Subscription Agreement (Omnicorder Technologies Inc)
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants to the Subscriber that prior to the consummation of this offering, at the Offering Initial Closing and at the Closing Dateeach subsequent closing date:
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organized, existing and in good standing under the laws of its jurisdiction of incorporation and has the corporate power to conduct the business which it conducts and proposes to conduct.
(b) The execution, delivery and performance of this Subscription Agreement by the Company will have been duly approved by the Board of Directors of the Company and all other actions required to authorize and effect the offer and sale of the Units and the Securities will have been duly taken and approved.
(c) The Preferred Shares and Warrants have been duly and validly authorized and when issued and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessablenon assessable. The Conversion Shares and Warrant Shares when issued upon conversion of the Preferred Shares Stock and exercise of the Warrants in accordance with their terms will be duly and validly issued and fully paid and nonassessablenon assessable.
(d) The Company will at all times have authorized and reserved a sufficient number of Conversion Shares and Warrant Shares (collectively, the "Reserved Shares") to provide for conversion of the Preferred SharesShares and exercise of the Warrants.
(e) The Company and each Subsidiary has, to the best of the Company's knowledge, obtained, or is in the process of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its respective business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewith; except where such failure to obtain comply with, or have in full force and effect licenses, permits and other governmental authorizations would not have a material adverse effect on the Company's or any Subsidiary's business, property, financial condition or operations.
(f) The Company knows of no pending or threatened legal or governmental proceedings to which the Company or any Subsidiary is a party which could materially adversely affect the business, property, financial condition or operations of the Company or any Subsidiary.
(g) Neither the Company nor any Subsidiary is in violation of or default under, nor will the execution and delivery of this Subscription Agreement, the issuance of the Preferred Shares Shares, the Warrants or the Agency Warrants Unit Purchase Option (as hereinafter defined), the incurrence of the obligations set forth herein and therein and the consummation of the transactions contemplated hereby or thereby, result in a violation of, or constitute a default under, the Company's or any Subsidiary's certificate of incorporation or by-laws, any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichwhich the Company or any Subsidiary is a party or by which any of them or any of their properties may be bound or any material order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign; except where such violation or default would not have a material adverse effect on the Company's or any Subsidiary's business, property, or financial condition or operations.
(h) The financial information contained in the Memorandum presents fairly the financial condition of the Company and its Subsidiaries as of the dates and for the periods indicated.
Appears in 1 contract
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants to the Subscriber that prior to the consummation of the this Offering and at the Closing Date:
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organized, existing and in good standing under the laws of its jurisdiction the State of incorporation Colorado and has the corporate power to conduct the business which it conducts and proposes to conduct.
(b) The execution, delivery and performance of this Subscription Agreement by the Company will have been duly approved by the Board of Directors of the Company and all other actions required to authorize and effect the offer and sale of the Units and the Securities securities contained therein will have been duly taken and approved.
(c) The Preferred Shares Notes and Warrants have been duly and validly authorized and when issued and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion of the Preferred Shares in accordance with their terms will be duly and validly issued and fully paid and nonassessablenon assessable.
(d) The Company will at all times have authorized and reserved a sufficient number of Conversion Shares (the "Reserved Shares") and Warrant Shares to provide for conversion of the Preferred SharesNotes and exercise of the Warrants.
(e) The Company and each Subsidiary has, to the best of the Company's knowledge, has obtained, or is in the process of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its respective business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewith.
(f) Neither The Company knows of no pending or threatened legal or governmental proceedings to which the Company nor any Subsidiary is a party which could materially adversely affect the business, property, financial condition or operations of the Company.
(g) The Company is not in violation of or default under, nor will the execution and delivery of this Subscription Agreement, the issuance of the Preferred Shares Notes or the Agency Warrants (as hereinafter defined)Warrants, and the incurrence of the obligations set forth herein and therein set forth and the consummation of the transactions contemplated hereby herein or therebytherein contemplated, result in a violation of, or constitute a default under, the Company's or any Subsidiary's certificate articles of incorporation or by-laws, any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichwhich the Company is a party or by which it or any of its properties may be bound or any material order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign.
Appears in 1 contract
Samples: Subscription Agreement (Commonwealth Associates /Bd)
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants to the Subscriber that prior to the consummation of the Offering this offering and at the Closing Date:
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organized, existing and in good standing under the laws of its jurisdiction the State of incorporation Colorado and has the corporate power to conduct the business which it conducts and proposes to conduct.
(b) The execution, delivery and performance of this Subscription Agreement by the Company will have been duly approved by the Board of Directors of the Company and all other actions required to authorize and effect the offer and sale of the Units and the Securities securities contained therein will have been duly taken and approved.
(c) The Preferred Shares Notes and Warrants have been duly and validly authorized and when issued and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion of the Preferred Shares in accordance with their terms will be duly and validly issued and fully paid and nonassessablenon assessable.
(d) The Company will at all times have authorized and reserved a sufficient number of Conversion Shares (the "Reserved Shares") and Warrant Shares to provide for conversion of the Preferred SharesNotes and exercise of the Warrants.
(e) The Company and each Subsidiary has, to the best of the Company's knowledge, has obtained, or is in the process of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its respective business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewith.
(f) Neither The Company knows of no pending or threatened legal or governmental proceedings to which the Company nor any Subsidiary is a party which could materially adversely affect the business, property, financial condition or operations of the Company.
(g) The Company is not in violation of or default under, nor will the execution and delivery of this Subscription Agreement, the issuance of the Preferred Shares Notes or the Agency Warrants (as hereinafter defined)Warrants, and the incurrence of the obligations set forth herein and therein set forth and the consummation of the transactions contemplated hereby herein or therebytherein contemplated, result in a violation of, or constitute a default under, the Company's or any Subsidiary's certificate articles of incorporation or by-laws, any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichwhich the Company is a party or by which it or any of its properties may be bound or any material order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign.
Appears in 1 contract
Samples: Subscription Agreement (Commonwealth Associates /Bd)
REPRESENTATIONS BY THE COMPANY. Except as set forth under the corresponding section of the disclosure schedules delivered to the Subscribers concurrently herewith (the "Disclosure Schedules") which Disclosure Schedules shall be deemed a part hereof, the Company hereby makes the representations and warranties set forth below to each Subscriber:
2.1 The Company represents and warrants to the Subscriber that prior to the consummation of the Offering and at the Closing Date:
(a) The Company and each of its has no direct or indirect subsidiaries (each a "Subsidiary," and collectively, "Subsidiaries") except as described in the SEC Reports (as defined below). All of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights, and the Company owns all of the issued and outstanding shares of capital stock of each Subsidiary, except as described in the SEC Reports. Each of the Company and the Subsidiaries is a corporation an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of its the jurisdiction of its incorporation or organization (as applicable), with the requisite power and has the corporate power authority to conduct the own and use its properties and assets and to carry on its business which it conducts and proposes to conduct.
(b) The execution, delivery and performance of this Subscription Agreement by as currently conducted. Neither the Company will have been duly approved by nor any Subsidiary is in violation of any of the Board provisions of Directors its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and all other the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (as applicable), with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted.
2.2 All actions required to authorize and effect the offer and sale of the Units Notes and Warrants and underlying securities by the Securities will Company have been duly taken and approved. The Company has all requisite power and full legal right to execute and deliver this Agreement and the Notes and Warrants, and to perform all of its obligations hereunder and thereunder in accordance with the respective terms hereof and thereof. This Agreement has been duly executed and delivered by the Company and constitutes, and each of the Notes and Warrants, when executed and delivered by the Company at the Closings, will constitute, a legal, valid, and binding obligation of the Company, enforceable against it in accordance with its respective terms, except to the extent that the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws in effect relating to creditors' rights generally or by general principles of equity whether asserted in an action at law or in equity.
(c) 2.3 The Preferred Shares Notes and Warrants have been duly and validly authorized and when duly executed, issued and paid delivered upon payment therefor will be validly issued and outstanding and will constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except to the extent that the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws in effect relating to creditors' rights generally or by general principles of equity whether asserted in an action at law or in equity. The shares of Common Stock of the Company issuable upon exercise of the Warrants have been reserved for issuance upon the exercise of the Warrants and when issued in accordance with the terms hereof, of the Warrants will be duly and authorized, validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion of the Preferred Shares in accordance with their terms will be duly and validly issued and issued, fully paid and nonassessable.
(d) 2.4 The Company will at all times have authorized execution, delivery and reserved a sufficient number performance of Conversion Shares (the "Reserved Shares") to provide for conversion of the Preferred Shares.
(e) The Company and each Subsidiary has, to the best of the Company's knowledge, obtained, or is in the process of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its respective business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and this Agreement by the Company and each Subsidiary is in all material respects complying therewith.
(f) Neither the consummation by the Company nor any Subsidiary is in violation of or default under, nor will the execution and delivery of this Subscription Agreement, the issuance of the Preferred Shares or the Agency Warrants (as hereinafter defined), the incurrence of the obligations set forth herein and therein and the consummation of the transactions contemplated hereby do not and will not: (i) conflict with or thereby, result in a violation of, or constitute a default under, violate any provision of the Company's or any Subsidiary's certificate or articles of incorporation incorporation, bylaws or by-other organizational or charter documents, or (ii) conflict with, 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 rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority as currently in effect to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not, individually or in the aggregate (a) adversely affect the legality, validity or enforceability of the Offering, (b) have or result in or be reasonably likely to have or result in a material adverse effect on the results of operations, assets, prospects, business or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (c) adversely impair the Company's ability to perform fully on a timely basis its obligations under this Agreement (any of (a), (b) or (c), a "Material Adverse Effect").
2.5 The number of shares and type of all authorized, issued and outstanding capital stock of the Company is set forth in the Disclosure Schedules attached hereto. No securities of the Company are entitled to preemptive or similar rights, and no person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated hereby. Except as set forth in the SEC Reports and as a result of the purchase and sale of the Notes and Warrants, there are no outstanding options, warrants, script rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exchangeable for, or giving any person any right to subscribe for or acquire, any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any subsidiary is or may become bound to issue additional shares of Common Stock, or securities or rights convertible or exchangeable into shares of Common Stock. The issuance and sale of the Notes and Warrants will not obligate the Company to issue shares of Common Stock or other securities to any person (other than the Subscribers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under such securities. All of the outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors of the Company or others is required for the issuance and sale of the Notes and Warrants. Except as disclosed in the SEC Reports, there are no stockholders agreements, voting agreements or other similar agreements with respect to the Company's capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company's stockholders.
2.6 The Company has filed all reports required to be filed by it under the Securities Act of 1933 as amended, (the "Securities Act") and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law to file such material) (the foregoing materials being collectively referred to herein as the "SEC Reports") on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved ("GAAP"), except as may be otherwise specified in such financial statements or the notes thereto, and fairly present in all material respects the financial position of the Company and its consolidated subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
2.7 Except as contemplated hereby, since the date of the latest audited financial statements included within the SEC Reports, except as specifically disclosed in the SEC Reports: (i) there has been no event, occurrence or development that has had a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company's financial statements pursuant to GAAP or required to be disclosed in filings made with the SEC, (iii) the Company has not altered its method of accounting or the identity of its auditors, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders except in the ordinary course of business consistent with prior practice, or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock except consistent with prior practice or pursuant to existing Company stock option or similar plans, and (v) the Company has not issued any equity securities to any officer, director or affiliate, except pursuant to existing Company stock option or similar plans.
2.8 Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an "Action") which: (i) adversely affects or challenges the legality, validity or enforceability of this Subscription Agreement or the Offering or (ii) would, if there were an unfavorable decision, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect. Except as disclosed in the SEC Reports, neither the Company nor any Subsidiary is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving the Company. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
2.9 The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except where the failure to possess such permits would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect ("Material Permits"), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit.
2.10 The Company has not, in the 12 months preceding the date hereof, received notice from the principal trading market for the Common Stock to the effect that the Company is not in compliance with the listing or maintenance requirements of such market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.
2.11 The Company is in material compliance with the requirements of the Xxxxxxxx-Xxxxx Act of 2002 applicable to it as of the date hereof. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the Company and designed such disclosures controls and procedures to ensure that material information relating to the Company, including its Subsidiaries, is made known to the certifying officers by others within those entities. The Company's certifying officers have evaluated the effectiveness of the Company's disclosure controls and procedures as of the last day of the reporting period for its most recently filed periodic report (such date, the "Evaluation Date"). The Company presented in its most recently filed periodic report the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no significant changes in the Company's internal controls over financial reporting (as such term is defined under the Exchange Act).
2.12 The Company confirms that neither the Company nor any other person acting on its behalf has provided any Subscriber or its agents or counsel with any information that constitutes or could reasonably be deemed to constitute material, non-public information. The Company understands and confirms that each Subscriber will rely on the foregoing representations and covenants in effecting transactions in securities of the Company. The disclosure provided to each Subscriber regarding the Company, its business and the transactions contemplated hereby, furnished by or on behalf of the Company, including all of the SEC Reports, does not contain any untrue statement of a material fact or omit to state any material obligationsfact necessary in order to make the statements made therein, agreementin light of the circumstances under which they were made, covenant not misleading. The Company acknowledges and agrees that each Subscriber makes or condition contained has made no representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichthis Agreement.
Appears in 1 contract
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants to the Subscriber that prior to the consummation of the Offering and at the Closing Date:
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organizedincorporated, validly existing and in good standing under the laws of its jurisdiction the State of incorporation Nevada and has the corporate power to conduct the business which it conducts and proposes to conduct.
(b) The execution, delivery and performance of this Subscription Agreement by the Company will have been duly approved authorized by the Board of Directors of the Company and all other actions corporate action required to authorize and effect consummate the offer and sale of the Units and the Securities will have has been duly taken and approved.
(c) The Preferred Units and the Warrants have been duly and validly authorized and will be duly and validly issued at closing of the Offering, and constitute legal, valid and binding obligations of the Company. The Common Stock and the Warrants Shares have been duly and validly authorized and and, when issued at the closing or upon exercise of and paid for in accordance with the terms hereofWarrants, will be duly and validly issued and issued, fully paid and nonassessable. The Conversion Shares when issued upon conversion of the Preferred Shares in accordance with their terms will be duly and validly issued and fully paid and nonassessablenon-assessable.
(d) The Company will at all times have authorized and reserved a sufficient number of Conversion Shares (the "Reserved Shares") to provide for conversion of the Preferred Shares.
(e) The Company and each Subsidiary has, to the best of the Company's knowledge, has obtained, or is in the process of obtaining, all licenses, permits and other governmental authorizations necessary to for the conduct of its respective business; , except where the failure to so obtain such licenses, permits and authorizations would not have a material adverse effect on the Company. Such licenses, permits and other governmental authorizations which have been obtained are in full force and effect; , except where the failure to be so would not have a material adverse effect on the Company, and the Company and each Subsidiary is in all material respects complying therewith.
(e) The Company knows of no pending or threatened legal or governmental proceedings to which the Company is a party which would materially adversely affect the business, financial condition or operations of the Company.
(f) Neither the The Company nor any Subsidiary is not in violation of or default under, nor will the execution and delivery of this Subscription Agreement, Agreement or the issuance of the Preferred Shares Units, Common Stock, Warrants and Warrant Shares, or the Agency Warrants (as hereinafter defined), the incurrence of the obligations set forth herein and therein and the consummation of the transactions contemplated hereby or therebyherein contemplated, result in a violation of, or constitute a default under, the Company's ’s Certificate of Incorporation or any Subsidiary's certificate of incorporation or byBy-laws, any material obligations, agreementagreements, covenant covenants or condition conditions contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichwhich the Company is a party or by which it or any of its properties may be bound or any material order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign.
(g) The Company owns, is licensed or otherwise has adequate rights to use Company technology (including but not limited to patented, patentable and unpatented inventions and unpatentable proprietary or confidential information, systems or procedures), designs, processes, trademarks, trade secrets, know how, copyrights and other works of authorship, computer programs and technical data and information that are or could reasonably be expected to be material to its business as currently conducted or proposed to be conducted or to the development, manufacture, operation and sale of any products and services sold or proposed to be sold by any of the Company (collectively, the “Intellectual Property”). The Company has not received any threat of or notice of infringement of or conflict with asserted rights of others with respect to any Intellectual Property. Except as set forth in the Offering Documents, the Company is not obligated or under any liability whatsoever to make any material payment by way of royalties, fees or otherwise to any owner or licensee of, or other claimant to, any Intellectual Property, with respect to the use thereof or in connection with the conduct of its businesses or otherwise. The Company has taken reasonable security measures to protect the secrecy, confidentiality and value of the Intellectual Property in all material aspects, including, but not limited to complying with all duty of disclosure requirements before the U.S. Patent and Trademark Office and any other non-U.S. Patent Offices as appropriate, and has no reason to believe that such Intellectual Property is not or, if not yet patented or registered, would not be, valid and enforceable against an unauthorized user.
(h) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required in connection with the authorization, issuance, transfer, sale or delivery of the Common Stock by the Company, in connection with the execution, delivery and performance of this Agreement by the Company.
(i) The Offering Documents and each of the Company’s reports and filings filed with the Securities and Exchange Commission are true and correct in all material respects and do not contain any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. No statement, representation, warranty or covenant made by the Company in this Agreement or made in any certificate or document required by this Agreement was or will be, when made, inaccurate, untrue or incorrect. All statistical or market-related data included in the Offering Documents are based on or derived from sources that the Company believes to be reliable and accurate, and the Company has obtained the written consent to the use of such data from such sources to the extent required.
Appears in 1 contract
Samples: Subscription Agreement (Tonix Pharmaceuticals Holding Corp.)
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants to makes the Subscriber that prior to following representations as the consummation of basis for the Offering and at the Closing Dateundertakings on its part herein contained:
(a) The Company and each of its subsidiaries (each a "Subsidiary"1) is a corporation duly organizedincorporated, presently existing and in good standing under the laws of the State of Illinois, (2) is duly qualified to transact business and is in good standing in every state where its jurisdiction ownership of incorporation and property or the conduct of business requires that it be so qualified, (3) is not in violation of any provision of its Articles of Incorporation or its By-laws, (4) has the full corporate power to own its properties and conduct its business, (5) has full legal right, power and authority to enter into this Agreement, the business which it conducts Tax Agreement, the Remarketing Agreement and proposes the First Mortgage Supplemental Indenture and to conductissue the First Mortgage Bonds and consummate all transactions contemplated by this Agreement, the Tax Agreement, the Remarketing Agreement and the First Mortgage Supplemental Indenture and (6) by proper corporate action has duly authorized the execution and delivery of this Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture and the First Mortgage Bonds.
(b) The Neither the execution and delivery by the Company of this Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture or the First Mortgage Bonds nor the consummation by the Company of the transactions contemplated by this Agreement conflicts with or will result in a breach of or default under the Articles of Incorporation or By-laws of the Company or the terms, conditions or provisions of any corporate restriction or any statute, order, rule, regulation, material agreement or material instrument to which the Company is a party or by which it is bound and, other than such as have previously been obtained and are in full force and effect, no approval or other action by any governmental authority or agency is required in connection with the execution, delivery and performance of this Subscription Agreement by the Company will have been duly approved by the Board of Directors of the Company and all other actions required to authorize and effect the offer and sale of the Units and the Securities will have been duly taken and approvedthereof.
(c) The Preferred Shares This Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture and the First Mortgage Bonds have been duly authorized, executed and validly authorized delivered by the Company and when issued constitute the legal, valid and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion binding obligations of the Preferred Shares Company enforceable against it in accordance with their terms will respective terms, except to the extent that enforcement thereof may be duly limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and validly issued and fully paid and nonassessableby general principles of equity.
(d) The Company will at all times have authorized and reserved a sufficient number of Conversion Shares (There is no litigation or proceeding pending, or to the "Reserved Shares") to provide for conversion knowledge of the Preferred SharesCompany after due inquiry threatened, against the Company, or affecting it, which could adversely affect the validity of this Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture or the First Mortgage Bonds or, except as disclosed in the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2002, and subsequent filings with the Securities and Exchange Commission under Sections 13(a) and 15(d) of the Securities Exchange Act of 1934, the ability of the Company to comply with its obligations under this Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture or the First Mortgage Bonds.
(e) The Company has obtained all necessary regulatory approval and each Subsidiary hasauthorization to issue the Bonds and execute and deliver this Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture and the First Mortgage Bonds, and no further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery of this Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture, the Continuing Disclosure Undertaking or the First Mortgage Bonds.
(f) The information furnished by the Company and used by the Issuer in preparing the Form 8038, Information Return for Private Activity Bond Issues, which has been filed by or on behalf of the Issuer with the Internal Revenue Service Center in Philadelphia, Pennsylvania, pursuant to Section 149(e) of the Code, in connection with the issuance of the Bonds, was true and complete as of the date of filing of said Form 8038.
(g) The statements, information and descriptions contained in the Project Certificate are true, correct and complete in all material respects, and the estimates and the assumptions contained in the Project Certificate are reasonable and based on the best information available to the Company.
(h) No "event of default" (as defined in the Prior Agreement) has occurred and is continuing under the Prior Agreement or the Prior Indenture, and no event has occurred and is continuing which, with the lapse of time or the giving of notice, or both, would become an "event of default" thereunder.
(i) The Project is located within the jurisdiction of the City of Chicago, which is an "area of critical labor surplus" within the meaning of the Act, and within the planning and subdivision control jurisdiction of the City of Chicago.
(j) To the best of the Company's knowledge, obtainedthe Project contributed to increased employment opportunities within the boundaries of the City of Chicago, or is otherwise served the public purposes set forth in the process Act as of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its respective business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewithdate hereof.
(fk) Neither The Project is an "industrial project," within the Company nor any Subsidiary is meaning of the Act as of the date hereof, and constitutes "facilities for the local furnishing of electric energy or gas" within the meaning of Section 142(a)(8) of the Code, and has been and will continue to be operated as an "industrial project" from the date placed in violation service to the date of or default under, nor will the execution and delivery termination of this Subscription Agreement, . No changes will be made in the issuance Project or in the operation of it which will affect the qualification of the Preferred Shares or Project as an "industrial project" under the Agency Warrants (Act as hereinafter defined), the incurrence of the obligations set forth herein and therein and date hereof, or as "facilities for the consummation local furnishing of electric energy or gas" under Section 142(a)(8) of the transactions contemplated hereby Code or thereby, result in a violation of, or constitute a default under, impair the Company's or excludability of interest on any Subsidiary's certificate of incorporation or by-laws, any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence the Bonds from gross income of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichthe owners thereof for federal income tax purposes.
Appears in 1 contract
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants to makes the Subscriber that prior to following representations as the consummation of basis for the Offering and at the Closing Dateundertakings on its part herein contained:
(a) The Company and each of its subsidiaries (each a "Subsidiary"1) is a corporation duly organizedincorporated, presently existing and in good standing under the laws of the State of Illinois, (2) is duly qualified to transact business and is in good standing in every state where its jurisdiction ownership of incorporation and property or the conduct of business requires that it be so qualified, (3) is not in violation of any provision of its Articles of Incorporation or its By-laws, (4) has the full corporate power to own its properties and conduct its business, (5) has full legal right, power and authority to enter into this Agreement, the business which it conducts Tax Agreement, the Remarketing Agreement and proposes the First Mortgage Supplemental Indenture and to conductissue the First Mortgage Bonds and consummate all transactions contemplated by this Agreement, the Tax Agreement, the Remarketing Agreement and the First Mortgage Supplemental Indenture and (6) by proper corporate action has duly authorized the execution and delivery of this Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture and the First Mortgage Bonds.
(b) The Neither the execution and delivery by the Company of this Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture or the First Mortgage Bonds nor the consummation by the Company of the transactions contemplated by this Agreement conflicts with or will result in a breach of or default under the Articles of Incorporation or By-laws of the Company or the terms, conditions or provisions of any corporate restriction or any statute, order, rule, regulation, material agreement or material instrument to which the Company is a party or by which it is bound and, other than such as have previously been obtained and are in full force and effect, no approval or other action by any governmental authority or agency is required in connection with the execution, delivery and performance of this Subscription Agreement by the Company will have been duly approved by the Board of Directors of the Company and all other actions required to authorize and effect the offer and sale of the Units and the Securities will have been duly taken and approvedthereof.
(c) The Preferred Shares This Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture and the First Mortgage Bonds have been duly authorized, executed and validly authorized delivered by the Company and when issued constitute the legal, valid and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion binding obligations of the Preferred Shares Company enforceable against it in accordance with their terms will respective terms, except to the extent that enforcement thereof may be duly limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and validly issued and fully paid and nonassessableby general principles of equity.
(d) The Company will at all times have authorized and reserved a sufficient number of Conversion Shares (There is no litigation or proceeding pending, or to the "Reserved Shares") to provide for conversion knowledge of the Preferred SharesCompany after due inquiry threatened, against the Company, or affecting it, which could adversely affect the validity of this Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture or the First Mortgage Bonds or, except as disclosed in the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2004, and subsequent filings with the Securities and Exchange Commission under Sections 13(a) and 15(d) of the Securities Exchange Act of 1934, the ability of the Company to comply with its obligations under this Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture or the First Mortgage Bonds.
(e) The Company has obtained all necessary regulatory approval and each Subsidiary hasauthorization to issue the Bonds and execute and deliver this Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture and the First Mortgage Bonds, and no further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery of this Agreement, the Tax Agreement, the Remarketing Agreement, the First Mortgage Supplemental Indenture, the Continuing Disclosure Undertaking or the First Mortgage Bonds.
(f) The information furnished by the Company and used by the Issuer in preparing the Form 8038, Information Return for Private Activity Bond Issues, which has been filed by or on behalf of the Issuer with the Internal Revenue Service Center in Philadelphia, Pennsylvania, pursuant to Section 149(e) of the Code, in connection with the issuance of the Bonds, was true and complete as of the date of filing of said Form 8038.
(g) The statements, information and descriptions contained in the Project Certificate are true, correct and complete in all material respects, and the estimates and the assumptions contained in the Project Certificate are reasonable and based on the best information available to the Company.
(h) No "event of default" (as defined in the Prior Agreement) has occurred and is continuing under the Prior Agreement or the Prior Indenture, and no event has occurred and is continuing which, with the lapse of time or the giving of notice, or both, would become an "event of default" thereunder.
(i) To the best of the Company's knowledge, obtainedthe Project contributed to increased employment opportunities within the boundaries of the City of Chicago, or is otherwise served the public purposes set forth in the process Act as of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its respective business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewithdate hereof.
(fj) Neither The Project is an "industrial project," within the Company nor any Subsidiary is meaning of the Act as of the date hereof, and constitutes "facilities for the local furnishing of electric energy or gas" within the meaning of Section 142(a)(8) of the Code, and has been and will continue to be operated as an "industrial project" from the date placed in violation service to the date of or default under, nor will the execution and delivery termination of this Subscription Agreement, . No changes will be made in the issuance Project or in the operation of it which will affect the qualification of the Preferred Shares or Project as an "industrial project" under the Agency Warrants (Act as hereinafter defined), the incurrence of the obligations set forth herein and therein and date hereof, or as "facilities for the consummation local furnishing of electric energy or gas" under Section 142(a)(8) of the transactions contemplated hereby Code or thereby, result in a violation of, or constitute a default under, impair the excludability of interest on any of the Bonds from gross income of the owners thereof for federal income tax purposes.
(k) To the best of the Company's or any Subsidiary's certificate knowledge compliance by the Company with the provisions of incorporation or by-lawsArticle IV of this Agreement will not involve, to the extent applicable, any material obligationsprohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, agreementas amended (herein sometimes referred to as "ERISA"), covenant or condition contained Section 4975 of the Code.
(l) The Company has any and all necessary licenses and permits to occupy and operate their existing facilities and has obtained, will obtain or will cause to be obtained all necessary licenses and permits to acquire, occupy and operate the Project, as they become required.
(m) The Company has obtained a Commitment Letter from the Credit Provider dated January __, 2005, pursuant to which the Credit Provider has committed to issue the initial Credit Facility on June 1, 2005, subject to terms and provisions set forth in any bondsuch Commitment Letter, debenturewhich, note by its terms, will expire on June 1, 2016, unless sooner terminated or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichextended as provided for therein.
Appears in 1 contract
Samples: Loan Agreement (Peoples Energy Corp)
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants As an inducement to the Subscriber that prior Issuer to issue the Series 1992 Bonds and to make the Loan to the consummation of Company, the Offering Company makes the following representations, warranties and at the Closing Datecovenants:
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organized, organized and existing and in good standing under the laws of its jurisdiction the State of incorporation Michigan and has is duly authorized to transact business as a foreign corporation in the corporate power to conduct the business which it conducts and proposes to conductState of Indiana.
(b) There are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company, threatened against or affecting the Company, except as set forth in the General Certificate of the Company in any court or before any governmental authority or arbitration board or tribunal which, if determined adversely to the Company, would materially and adversely affect the transactions contemplated by this Agreement, the Pledge Agreement, the Promissory Note, the Reimbursement Agreement or the Indenture or which, in any way, would materially and adversely affect the enforceability or validity of the Series 1992 Bonds, the Indenture, the Reimbursement Agreement, the Pledge Agreement, the Promissory Note or this Agreement or the ability of the Company to perform its obligations under this Agreement.
(c) The execution, delivery and performance of this Subscription Agreement, the Pledge Agreement, the Promissory Note and the Reimbursement Agreement and the compliance by the Company will with all of the provisions hereof and thereof are within its corporate powers, have been duly approved authorized by the Board corporate action, and are not in contravention of Directors law or of the Company and all other actions required to authorize and effect the offer and sale terms of the Units and Company's Articles of Incorporation or By-Laws, or any unwaived provision of any mortgage, deed, instrument or undertaking to which the Securities will have been duly taken and approved.
(c) The Preferred Shares have been duly and validly authorized and when issued and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion of the Preferred Shares in accordance with their terms will be duly and validly issued and fully paid and nonassessableCompany is a party or by which it or its property is bound.
(d) The Company will at all times have authorized This Agreement, the Pledge Agreement, the Promissory Note and reserved a sufficient number the Reimbursement Agreement are valid, binding and enforceable in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors' rights generally and general principles of Conversion Shares (the "Reserved Shares") to provide for conversion of the Preferred Sharesequity.
(e) The Company and each Subsidiary has, to the best of the Company's knowledge, obtained, or is in the process of obtaining, has obtained all licenses, permits and other governmental authorizations approvals necessary to and obtainable as of the Issue Date for the ownership or conduct of its respective business; business on the Land, including the ownership and utilization of the Project thereon and such licensesother transactions as are contemplated by this Agreement, permits and other governmental authorizations obtained are in full force and effect; the Indenture, the Pledge Agreement, the Promissory Note and the Company and each Subsidiary is in all material respects complying therewithReimbursement Agreement.
(f) Neither The financing, acquisition, construction and completion of the Project is expected to result in an increase of the productivity of the Company nor any Subsidiary is in violation and the creation of or default under, nor will ninety (90) new jobs.
(g) The Company intends to cause the execution and delivery Project to operate at all times during the term of this Subscription AgreementAgreement so as to qualify as an "economic development facility" as defined in the Act.
(h) The Project will be acquired and constructed in such manner as to conform with all applicable zoning, planning, environmental and other regulations of governmental authorities having jurisdiction of the Project; all necessary utilities are or will be available to the Project; and the Company has obtained or caused to be obtained, or will obtain or cause to be obtained, all requisite zoning, planning, environmental and other permits necessary for the acquisition and construction and the use contemplated for the Project.
(i) None of the proceeds of the Bonds shall be applied to any costs of the acquisition or construction of the Project which were paid or incurred (within the meaning of Section 103 of the Code) prior to the inducement resolution adopted by the Issuer with respect to the Project on December 16, 1991.
(j) No bonds as described in Section 144(a)(2) of the Code have been issued by any state, political subdivision, district, public body, agency, authority, commission or instrumentality, the issuance proceeds of which have been or will be used with respect to facilities located within the unincorporated are of Noble County, Indiana, the Principal User of which is the Company or a Related Person as defined in Section 144(a)(3) of the Preferred Shares Code.
(k) The Project constitutes land or property of a character subject to the Agency Warrants allowance for depreciation provided by the Code, and at least 95% of the net proceeds of the Series 1992 Bonds are being used to acquire property of such character and subject to such allowance.
(l) The amount of Issuance Costs financed from the proceeds of the sale of the Series 1992 Bonds shall not exceed 2% of the proceeds of the Series 1992 Bonds.
(m) The Company has supplied the Issuer in its Tax Representation Certificate the estimates of the Costs of the Project, the Completion Date and periods of usefulness of the Project. The Company hereby warrants that such estimates were made in good faith and are fair, reasonable and realistic based upon information known to the Company as hereinafter definedof the Issue Date.
(n) There are no other bonds described in Section 144(a) of the Code which have been issued, or are contemplated to be issued, pursuant to Section 144(a) of the Code (or its predecessor provision), for the incurrence benefit of the obligations set forth herein Company or any Related Person to the Company and therein and the consummation which (i) were or are to be sold within 31 days of the transactions contemplated hereby Issue Date; (ii) were or thereby, result in are to be sold pursuant to a violation of, common plan of marketing as of the marketing plan for the Series 1992 Bonds; (iii) were or constitute a default under, are to be sold at substantially the Company's or any Subsidiary's certificate same rate of incorporation or by-laws, any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichinterest as the interest rate on the
Appears in 1 contract
Samples: Loan Agreement (Walbro Corp)
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants to the Subscriber that prior to the consummation of the Offering this offering and at the Closing Dateclosing date, except with regard to the provisions of paragraph II(d) herein for which the Company represents and warrants to the Subscriber that at the closing date:
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organized, existing and in good standing under the laws of its jurisdiction the State of incorporation Delaware and has the corporate power to conduct the business which it conducts and proposes to conductconduct and is qualified to do business in New York.
(b) The execution, delivery and performance of this Subscription Agreement by the Company will have been duly approved by the Board of Directors of the Company and all other actions required to authorize and effect the offer and sale of the Units and the Securities securities contained therein will have been duly taken and approved.
(c) The Preferred Shares Debentures comprising the Units have been duly and validly authorized and when issued and paid for in accordance with the terms hereof, will be duly valid and validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion binding obligations of the Preferred Shares Company enforceable in accordance with their terms will terms, except as such enforceability may be duly limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights, that the remedy of specific performance and validly issued injunctive and fully paid other forms of equitable relief may be subject to equitable defenses and nonassessableto the discretion of the court before which any proceeding therefore may be brought.
(d) The Company will at all times during the term of the Debentures (including the debentures issuable upon exercise of the Agent's Warrants, as defined herein) have authorized and reserved a sufficient number of Conversion Shares (the "Reserved Shares") shares of Common Stock to provide for conversion of the Preferred SharesDebentures as well as exercise of the warrants issuable upon such conversion. The warrants have been duly authorized and, when issued and delivered upon conversion of the Debentures (including the debentures issuable upon exercise of the Agent's Warrants), will have been duly executed, issued and delivered and will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms. The shares of Common Stock issuable upon exercise of the warrants issuable upon conversion of the Debentures (including the debentures issuable upon exercise of the Agent's Warrants) have been reserved for issuance upon the exercise of the Warrants and when issued in accordance with the terms of the Warrants will be duly and validly authorized, validly issued, fully paid and non-assessable and free of preemptive rights and no personal liability will attach to the ownership thereof.
(e) The Company and each Subsidiary has, to the best of the Company's knowledge, has obtained, or is in the process of obtaining, all material licenses, permits and other governmental authorizations necessary to the conduct of its respective business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewith.
(f) Neither The Company knows of no pending or threatened legal or governmental proceedings to which the Company nor any Subsidiary is a party which could materially adversely affect the business, property, financial condition or operations of the Company.
(g) The Company is not in violation of or default under, nor will the execution and delivery of this Subscription Agreement, the issuance of the Preferred Shares or the Agency Warrants (as hereinafter defined)Debentures, and the incurrence of the obligations set forth herein and therein set forth and the consummation of the transactions contemplated hereby herein or therebytherein contemplated, result in a violation of, or constitute a default under, the Company's or any Subsidiary's certificate of incorporation or by-laws, any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to which the Company is a party or by which it or any of its properties may be bound or in violation of any material order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign.
(h) The Company has entered into acquisition agreements, each of which are in full force and effect, with each of Athletes and Artists, Inc. and Sports Management & Television International, Inc. pursuant to which, among other things, simultaneously with the closing of financings aggregating at least $13,800,000 in gross proceeds to the Company, each of such entities has agreed to merge with a separate wholly-owned subsidiary to be formed by the Company (the "Acquisitions"), subject to the fulfillment or satisfaction of closing conditions contained in the agreements for such acquisitions.
Appears in 1 contract
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants to the Subscriber that prior to the consummation of the Offering this offering and at the Closing Date:
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organized, existing and in good standing under the laws of its jurisdiction the State of incorporation Nevada and has the corporate power to conduct the business which it conducts and proposes to conductconduct and is qualified to do business in New Jersey.
(b) The execution, delivery and performance of this Subscription Agreement by the Company will have been duly approved by the Board of Directors of the Company and all other actions required to authorize and effect the offer and sale of the Units and the Securities securities contained therein will have been duly taken and approved.
(c) The Preferred Shares Notes and Warrants have been duly and validly authorized and when issued and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion of the Preferred Shares in accordance with their terms will be duly and validly issued and fully paid and nonassessablenon assessable.
(d) The Company will at all times have authorized and reserved a sufficient number of Conversion Warrant Shares (the "Reserved Shares") to provide for conversion exercise of the Preferred SharesWarrants.
(e) The Company and each Subsidiary has, to the best of the Company's knowledge, has obtained, or is in the process of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its respective business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewith.
(f) Neither The Company knows of no pending or threatened legal or governmental proceedings to which the Company nor any Subsidiary is a party which could materially adversely affect the business, property, financial condition or operations of the Company.
(g) The Company is not in violation of or default under, nor will the execution and delivery of this Subscription Agreement, the issuance of the Preferred Shares Notes or the Agency Warrants (as hereinafter defined)Warrants, and the incurrence of the obligations set forth herein and therein set forth and the consummation of the transactions contemplated hereby herein or therebytherein contemplated, result in a violation of, or constitute a default under, the Company's or any Subsidiary's certificate articles of incorporation or by-laws, any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichwhich the Company is a party or by which it or any of its properties may be bound or any material order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign.
(h) The financial information contained in the Offering Documents presents fairly the financial condition of the Company as of the dates and for the periods indicated.
Appears in 1 contract
Samples: Subscription Agreement (Commonwealth Associates /Bd)
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants to the Subscriber that prior to at the consummation of the Offering date hereof and at the Closing Date:(as hereinafter defined):
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organized, existing and in good standing under the laws of its jurisdiction the State of incorporation Delaware and has the corporate power to conduct the business which it conducts and proposes to conduct.
(b) The execution, delivery and performance of this Subscription Agreement by the Company will have been duly approved by the Board board of Directors directors of the Company and all other actions required to authorize and effect the offer and sale of the Units and the Securities will have been duly taken and approved.
(c) The Preferred Shares Securities have been duly and validly authorized and when issued and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion the binding obligations of the Preferred Shares in accordance with their terms will be duly and validly issued and fully paid and nonassessableCompany.
(d) The Company will at all times have authorized and reserved a sufficient number of Conversion Warrant Shares (the "Reserved Shares") and B2 Warrant Shares to provide for conversion exercise of the Preferred SharesWarrants.
(e) The Company and each Subsidiary has, to the best issuance of the Company's knowledgeWarrant Shares and B2 Warrant Shares upon the exercise of the A, B and B2 Warrants in accordance with the terms of the Warrant Agreement shall be, against payment therefor (if any), validly issued, fully paid and nonassessable.
(f) The Company has obtained, or is in the process of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its respective business, except where the failure to obtain any of the same would not be reasonably likely to have a material adverse effect on the Company; such licenses, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewith.
(fg) Neither The Company knows of no pending or threatened legal or governmental proceedings to which the Company nor any Subsidiary is a party which would be reasonably likely to materially adversely affect the business, property, financial condition or operations of the Company.
(h) The Company is not in violation of or default under, nor will the execution and delivery of this Subscription Agreement, the issuance of the Preferred Shares or the Agency Warrants (as hereinafter defined)Securities, and the incurrence of the obligations set forth herein and therein set forth and the consummation of the transactions contemplated hereby herein or therebytherein contemplated, result in a violation of, or constitute a default under, the Company's or any Subsidiary's certificate articles of incorporation or by-laws, any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichwhich the Company is a party or by which it or any of its properties may be bound or any material order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign.
(i) The Company will cause $125,000 out of the proceeds of the Placement to be used for principal, interest and other fee payments due under the Loan Agreement.
(j) There are no obligations of the Company to officers, directors, stockholders or employees of the Company other than (a) for payment of salary for services rendered, (b) reimbursement for reasonable expenses incurred on behalf of the Company, (c) for other standard employee benefits made generally available to all employees (including stock option agreements outstanding under any stock option plan approved by the Board of Directors of the Company) and (d) obligations listed in the Company's financial statements or disclosed in any of its Exchange Act Filings. None of the officers, directors or, to the best of the Company's knowledge, key employees or stockholders of the Company or any members of their immediate families, are indebted to the Company, individually or in the aggregate, in excess of $50,000 or have any direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation which competes with the Company, other than passive investments in publicly traded companies (representing less than 1% of such company) which may compete with the Company. No officer, director or stockholder, or any member of their immediate families, is, directly or indirectly, interested in any material contract with the Company and no agreements, understandings or proposed transactions are contemplated between the Company and any such person. The Company is not a guarantor or indemnitor of any indebtedness of any other person, firm or corporation.
(k) Except as set forth in Schedule 2.1(k), since December 31, 2002, there has not been:
(i) Any change in the assets, liabilities, financial condition, prospects or operations of the Company, other than changes in the ordinary course of business, none of which individually or in the aggregate has had or is reasonably expected to have a material adverse effect on such assets, liabilities, financial condition, prospects or operations of the Company;
(ii) Any resignation or termination of any officer, key employee or group of employees of the Company;
(iii) Any material change, except in the ordinary course of business, in the contingent obligations of the Company by way of guaranty, endorsement, indemnity, warranty or otherwise;
(iv) Any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the properties, business or prospects or financial condition of the Company;
(v) Any waiver by the Company of a valuable right or of a material debt owed to it;
(vi) Any direct or indirect material loans made by the Company to any stockholder, employee, officer or director of the Company, other than advances made in the ordinary course of business;
(vii) Any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(viii) Any declaration or payment of any dividend or other distribution of the assets of the Company;
(ix) Any labor organization activity related to the Company;
(x) Any debt, obligation or liability incurred, assumed or guaranteed by the Company, except those for immaterial amounts and for current liabilities incurred in the ordinary course of business;
(xi) Any sale, assignment or transfer of any patents, trademarks, copyrights, trade secrets or other intangible assets;
(xii) Any change in any material agreement to which the Company is a party or by which it is bound which may materially and adversely affect the business, assets, liabilities, financial condition, operations or prospects of the Company;
(xiii) Any other event or condition of any character that, either individually or cumulatively, has or may materially and adversely affect the business, assets, liabilities, financial condition, prospects or operations of the Company; or
(xiv) Any arrangement or commitment by the Company to do any of the acts described in subsection (i) through (xiii) above.
(l) Assuming the accuracy of the representations and warranties of the Subscriber contained in this Subscription Agreement, the offer, sale and issuance of the Securities will be exempt from the registration requirements of the 1933 Act, and will have been registered or qualified (or are exempt from registration and qualification) under the registration, permit or qualification requirements of all applicable state securities laws. Neither the Company nor any of its affiliates, nor any person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Securities.
(m) The Common Stock of the Company is registered pursuant to Section 12(b) or 12(g) of the Exchange Act and the Company has timely filed all proxy statements, reports, schedules, forms, statements and other documents required to be filed by it under the Exchange Act. The Company has furnished the Subscriber with copies of (i) its Annual Report on Form 10-KSB for the fiscal year ended December 31, 2002, (ii) its Quarterly Reports on Form 10-QSB for the fiscal quarter ended March 31, 2003, June 30, 2003, and September 30, 2003 and (iii) its Proxy Statement filed with the SEC on November 13, 2003 (collectively, the "SEC REPORTS"). The Company is eligible to file a registration statement on Form S-3 with the SEC. Each SEC Report was, at the time of its filing, in substantial compliance with the requirements of its respective form and none of the SEC Reports, nor the financial statements (and the notes thereto) included in the SEC Reports, as of their respective filing dates, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles ("GAAP") applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed) and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).
(n) The Company's Common Stock is listed for trading on the American Stock Exchange and satisfies all requirements for the continuation of such listing. The Company has not received any notice that its Common Stock will be delisted from the American Stock Exchange or that the Common Stock and the Company do not meet all requirements for the continuation of such listing.
(o) In the event that shareholder approval is required to consummate the transaction contemplated by this Agreement under the rules of the American Stock Exchange, Nasdaq Stock Market or other applicable exchange, due to issuance of 20% or more of its outstanding common stock, the Company shall use its best efforts to obtain shareholder approval of such transaction on or before January 20, 2004 (the "APPROVAL"). The Company shall have received proxies from each of the executive officers and directors of the Company agreeing to vote in favor of the Approval.
(p) Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales of any security or solicited any offers to buy any security under circumstances that would cause the offering of the Securities pursuant to this Agreement to be integrated with prior offerings by the Company for purposes of the 1933 Act which would prevent the Company from selling the Securities pursuant to Rule 506 under the 1933 Act, or any applicable exchange-related stockholder approval provisions, nor will the Company or any of its affiliates or subsidiaries take any action or steps that would cause the offering of the Securities to be integrated with other offerings.
Appears in 1 contract
Samples: Subscription Agreement (Frontline Communications Corp)
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants to the Subscriber that prior to the consummation as of the date of the closing of this Offering and at (the “Closing Date:”):
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organizedincorporated, validly existing and in good standing under the laws of its jurisdiction the State of incorporation Delaware and has the corporate power to conduct the business which it conducts and proposes to conduct.
(b) The execution, delivery and performance of this Subscription Agreement by the Company will have been duly approved authorized by the Board of Directors of the Company and all other actions corporate action required to authorize and effect consummate the offer and sale of the Units and the Securities Common Stock will have been duly taken and approved.
(c) The Series A Preferred Shares Stock have been duly and validly authorized and when issued and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable. The Conversion Shares when issued Common Stock issuable upon the conversion of the Series A Preferred Shares in accordance with their terms will be duly and validly issued and fully paid and nonassessableStock have been reserved for issuance.
(d) The Company will at all times have authorized and reserved a sufficient number of Conversion Shares (the "Reserved Shares") to provide for conversion of the Preferred Shares.
(e) The Company and each Subsidiary has, to the best of the Company's knowledge, has obtained, or is in the process of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its respective business; , except where the failure to so obtain such licenses, permits and authorizations would not have a material adverse effect on the Company. Such licenses, permits and other governmental authorizations obtained are in full force and effect; , except where the failure to be so would not have a material adverse effect on the Company, and the Company and each Subsidiary is in all material respects complying therewith. For the purposes of this Agreement, the Consolidation Transaction shall mean the closing of transactions by which there shall be cancelled all of the issued and outstanding shares of Preferred Stock of SendTec Acquisition Corp. (“STAC”), a Delaware Corporation, and the exchange of STAC Senior Secured Convertible Debentures convertible into STAC Common Stock for STAC Senior Secured Convertible Debentures convertible into Common Stock of the Company.
(e) The Company knows of no pending or threatened legal or governmental proceedings to which the Company is a party which would materially adversely affect the business, financial condition or operations of the Company, except that the Company has advised the subscribers of certain facts described under Certain Legal Proceedings in the SEC filings and reports.
(f) Neither the The Company nor any Subsidiary is not in violation of or default under, nor will the execution and delivery of this Subscription Agreement, Agreement or the issuance of the Series A Preferred Shares Stock, or the Agency Warrants (as hereinafter defined), the incurrence of the obligations set forth herein and therein and the consummation of the transactions contemplated hereby or therebyherein contemplated, result in a violation of, or constitute a default under, the Company's or any Subsidiary's ’s certificate of incorporation or by-laws, any material obligations, agreementagreements, covenant covenants or condition conditions contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to whichwhich the Company is a party or by which it or any of its properties may be bound or any material order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign.
Appears in 1 contract
REPRESENTATIONS BY THE COMPANY. 2.1 The Company represents and warrants to the Subscriber that prior to the consummation of the Offering and at the Closing Dateas follows:
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organized, existing incorporated and in good standing under the laws of its jurisdiction the State of incorporation New York, is duly qualified and authorized to engage in business as a public utility in the State of New York, has the corporate power to conduct enter into, execute and deliver this Participation Agreement and the business which it conducts Tax Regulatory Agreement, and proposes to conduct.
(b) The execution, delivery issue and performance of this Subscription Agreement by deliver the Company will have been Obligation and by proper corporate action has duly approved by the Board of Directors of the Company and all other actions required to authorize and effect the offer and sale of the Units and the Securities will have been duly taken and approved.
(c) The Preferred Shares have been duly and validly authorized and when issued and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable. The Conversion Shares when issued upon conversion of the Preferred Shares in accordance with their terms will be duly and validly issued and fully paid and nonassessable.
(d) The Company will at all times have authorized and reserved a sufficient number of Conversion Shares (the "Reserved Shares") to provide for conversion of the Preferred Shares.
(e) The Company and each Subsidiary has, to the best of the Company's knowledge, obtained, or is in the process of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its respective business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewith.
(f) Neither the Company nor any Subsidiary is in violation of or default under, nor will the execution and delivery of this Subscription Participation Agreement, the Tax Regulatory Agreement, the Insurance Agreement and the issuance and delivery of the Preferred Shares or Company Obligation;
(b) The execution and delivery of this Participation Agreement and the Agency Warrants (as hereinafter defined), the incurrence issuance and delivery of the obligations set forth herein and therein Company Obligation and the consummation of the transactions herein contemplated hereby or thereby, result in a violation of, will not conflict with or constitute a breach of or a default under, under the Company's Certificate of Incorporation or By-Laws or any Subsidiary's certificate of incorporation judgment, decree, order, statute, rule or by-laws, regulation applicable to the Company or any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture agreement or other agreement contract or instrument to whichwhich the Company is a party or by which it is bound;
(c) The issuance and delivery of the Company Obligation by the Company and the execution and delivery of this Participation Agreement by the Company in the manner and for the purposes herein set forth have been duly authorized by an order of the Public Service Commission of the State of New York; and
(d) The Participation Agreement, the Tax Regulatory Agreement and the Insurance Agreement have been duly executed and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors' rights or contractual obligations generally or principles of equity or judicial discretion; and
(e) All necessary authorizations for or approvals of the execution and delivery of this Participation Agreement and the issuance and delivery of the Company Obligation have been obtained by the Company; and
(f) The Company agrees to reimburse the Bond Insurer immediately and unconditionally upon demand, to the extent permitted by law, for all reasonable expenses, including attorneys' fees and expenses, incurred by the Bond Insurer in connection with (i) the enforcement by the Bond Insurer of the Company's obligations, or the preservation or defense of any rights of the Bond Insurer, under this Indenture and any other document executed in connection with the issuance of the Bonds, and (ii) any consent, amendment, waiver or other action with respect to the Indenture or any related document, whether or not granted or approved, together with interest on all such expenses from and including the date incurred to the date of payment at Citibank's Prime Rate plus 3% or the maximum interest rate permitted by law, whichever is less. In addition, the Insurer reserves the right to charge a fee in connection with its review of any such consent, amendment or waiver, whether or not granted or approved; and
(g) The Company agrees not to use the Bond Insurer's name in any public document including, without limitation, a press release or presentation, announcement or forum without the Bond Insurer's prior consent. In the event that the Company is advised by counsel that it has a legal obligation to disclose the Bond Insurer's name in any press release, public announcement or other public document, the Company shall provide the Bond Insurer with at least three (3) business days' prior written notice of its intent to use the Bond Insurer's name together with a copy of the proposed use of the Bond Insurer's name and of any description of a transaction with the Bond Insurer and shall obtain the Bond Insurer's prior consent as to the form and substance of the proposed use of the Bond Insurer's name and any such description.
(h) The Company shall not enter into any agreement nor shall it consent to or participate in any arrangement pursuant to which Bonds are tendered or purchased for any purpose other than the redemption and cancellation or legal defeasance of such Bonds without the prior written consent of the Bond Insurer; and
(i) The Company has corporate power to take all actions required or permitted to be taken by the Company by or under, and to perform and observe the covenants and agreements on its part contained in, the Indenture.
Appears in 1 contract
REPRESENTATIONS BY THE COMPANY. 2.1 The Company hereby represents and warrants to the Subscriber that prior to the consummation of the Offering and at the Closing DateInvestor that:
(a) The Company and each of its subsidiaries (each a "Subsidiary") is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction the State of incorporation Delaware and has the all requisite corporate power and authority to conduct its business as described in the business which it conducts and proposes to conductExecutive Summary.
(b) The executionShares have been (and the Warrant Shares will be, delivery and performance of this Subscription Agreement presuming due exercise by the Company holder in accordance with the Warrant) duly and validly authorized and, when issued in accordance with this Agreement (or, with respect to the Warrant Shares, when issued in accordance with the Warrant), will have been duly approved by the Board be validly issued, fully paid and nonassessable and issued in full compliance with all applicable laws, including federal and state securities laws, and without violation of Directors of the Company and all other actions required to authorize and effect the offer and sale of the Units any preemptive rights, and the Securities Investor will have been duly taken acquire good and approvedmarketable title to the Securities, free and clear of any lien but subject in all respects to the Stockholders Agreement.
(c) The Preferred Shares have been duly As of the date of this Agreement, not taking into account the issuance of any Units, the authorized capital stock of the Company consists of 40,000,000 shares of common stock and validly authorized and when 5,000,000 shares of preferred stock. There are currently 10,600,000 shares of Common Stock issued and paid for in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessableoutstanding. The Conversion Shares when issued upon conversion Company has adopted a stock option plan, under which the Company may grant options exercisable for up to 1,500,000 shares of Common Stock. No shares of stock are held in the treasury of the Preferred Shares in accordance Company. There are no options, warrants, or other contracts to which the Company is a party relating to the issuance, sale, or transfer of any equity securities or other securities of the Company. Other than the Stockholders Agreement, there exist no stockholder agreements, voting trusts, proxies, or other contracts with their terms will be duly and validly issued and fully paid and nonassessablerespect the sale, transfer, registration, or voting of shares of Common Stock.
(d) The Company will at all times has full power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement. Execution and delivery of this Agreement and performance by the Company of its obligations under this Agreement have been duly authorized by the Company’s board of directors and reserved a sufficient number of Conversion Shares (no other corporate proceedings on the "Reserved Shares") to provide for conversion part of the Preferred SharesCompany are necessary with respect thereto. This Agreement constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability is limited by (1) any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally, or (2) general principles of equity, whether considered in a proceeding in equity or at law. The issuance and sale of the Shares will not give rise to any preemptive rights or rights of first refusal on behalf of any person or entity not previously waived except as provided in the Stockholders Agreement.
(e) The Company is not required to obtain the consent of any person or entity, including the consent of any party to any contract to which the Company is a party, in connection with execution and each Subsidiary has, to the best delivery of the Company's knowledge, obtained, or is in the process of obtaining, all licenses, permits this Agreement and other governmental authorizations necessary to the conduct performance of its respective business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and the Company and each Subsidiary is in all material respects complying therewithobligations under this Agreement.
(f) Neither the Company nor any Subsidiary is in violation of or default under, nor will the The Company’s execution and delivery of this Subscription Agreement, the issuance Agreement and performance of its obligations under this Agreement do not and will not (1) violate any provision of the Preferred Shares or the Agency Warrants (as hereinafter defined), the incurrence of the obligations set forth herein and therein and the consummation of the transactions contemplated hereby or thereby, result in a violation of, or constitute a default under, the Company's or any Subsidiary's certificate of incorporation or by-lawslaws of the Company as currently in effect, (2) conflict with, result in a breach of, constitute a default under (or an event that, with notice or lapse of time or both, would constitute a default under), accelerate the performance required by, result in the creation of any lien upon any of the properties or assets of the Company under, or create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under, any material obligationscontract to which the Company is a party or by which any properties or assets of the Company are bound, agreement, covenant or condition contained (3) violate any law or court order currently in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument effect to whichwhich the Company is subject.
Appears in 1 contract
