SELLER'S REPRESENTATIONS AND COVENANTS. Seller represents, warrants and covenants to Buyer as follows: (i) Seller has been duly incorporated and is validly existing and in good standing under the laws of the State of New York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as currently conducted, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to register or qualify is not reasonably anticipated to have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of Seller and its subsidiaries taken as a whole; (ii) Seller has registered shares of its Common Stock pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is in full compliance with all reporting requirements of the Exchange Act, and the Common Stock is quoted on the Nasdaq National Market (trading symbol ISEE); (iii) Seller has delivered to Xxxxx Xxxxxx, Esq., counsel to the Buyer, with copies of Seller's most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission (the "Commission"), all Forms 10-Q and 8-K filed thereafter and all other filings made with the Commission after the filing of the most recent Form 10-K (collectively, the "Public Documents"). Except for a possible, required reclassification, on Seller's Consolidated Balance Sheets, of certain Debentures issued by the Seller on February 25, 1997, and except for certain possible, non-cash charges to income resulting therefrom, the Public Documents, at the time of their filing, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading; (iv) At the Closing, each of the Units, the Preferred Stock and the Warrants shall be duly authorized and validly issued and each of them shall be enforceable in accordance with their terms (subject to general principles of equity and bankruptcy, fraudulent conveyance, preference and other laws affecting creditors' rights generally). The Preferred Stock, Warrant Shares and Equity Shares, as well as any shares of Common Stock to be issued to the Buyer upon exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations (the "Interest Shares") when issued and delivered, will be duly and validly authorized and issued, fully paid and nonassessable, free from all encumbrances and restrictions other than restrictions on transfer imposed by applicable securities laws and/or this Agreement and/or the Certificate of Designations, and will not subject the holders thereof to personal liability by reason of being such holders. Seller has reserved 1,400,000 shares of Common Stock for issuance upon conversion of the Preferred Stock and exercise of the Warrants. There are no preemptive rights of any shareholder of Seller with respect to the Preferred Stock, the Warrants or the Shares; (v) This Agreement has been duly authorized, validly executed and delivered on behalf of Seller and is a valid and binding agreement of Seller enforceable in accordance with its terms, subject to general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors' rights generally, and Seller has full power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder; (vi) The execution and delivery of this Agreement, the issuance of the Preferred Stock, the Warrants, the Shares (upon conversion of the Preferred Stock, the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations) and the consummation of the transactions contemplated by this Agreement by Seller, will not conflict with or result in a breach of or a default under any of the terms or provisions of, Seller's certificate of incorporation or By-laws, or of any material provision of any indenture, mortgage, deed of trust or other material agreement or instrument to which Seller is a party or by which it or any of its properties or assets is bound, any material provision of any law, statute, rule, regulation, or any existing applicable decree, judgment or order by any court, federal or state regulatory body, administrative agency, or other governmental body having jurisdiction over Seller, or any of its properties or assets or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of Seller or any of its subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of their property or any of them is subject; (vii) No authorization, approval, filing with or consent of any governmental body is required for the issuance and sale of the Preferred Stock, the Warrants or the Shares (upon conversion of the Preferred Stock, or the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations) as contemplated by this Agreement, except as may be required under the securities or blue sky laws of the various states; (viii) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending or, to the actual knowledge of Seller (without inquiry), threatened, against or affecting Seller, or any of its properties, which would reasonably be anticipated to result in any material adverse change in the condition (financial or otherwise) or in the earnings, business affairs, business prospects, properties or assets of Seller and its subsidiaries, taken as a whole; (ix) Seller shall issue the Preferred Stock in the name of Buyer in the amount specified in Section 1(i) above in denominations of One Hundred Thousand ($100,000) Dollars Stated Value. Seller shall issue the Warrants in the name of Buyer in the amount specified in Section 1(i) in denominations of Twenty Thousand (20,000) Warrants. Upon conversion of the Preferred Stock or the exercise of the Warrants, or the payment, by the Seller, of any required dividends on the Preferred Stock in shares of its Common Stock which may then be resold pursuant to the Registration Statement (as hereinafter defined), Seller will issue one or more certificates representing the Shares, in the name of Buyer, with a legend (if applicable) substantially in the form specified by Section 2(vii) above, and in such denominations to be specified by Buyer prior to conversion or exercise, as the case may be; and (x) Seller has not employed any investment banker, broker or finder or incurred any liability for any brokerage fees, commissions or finder's fees in connection with the transactions contemplated by this Agreement except for a fee payable by Seller, at the Closing, to Xxxxxxx & Company, Inc., in an amount equal to five (5%) percent of the principal amount of this Debenture.
Appears in 1 contract
SELLER'S REPRESENTATIONS AND COVENANTS. Seller represents, warrants and covenants to Buyer as follows:
(i) Seller has been duly incorporated and is validly existing and in good standing under the laws of the State of New York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as currently conducted, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to register or qualify is not reasonably anticipated to have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of Seller and its subsidiaries taken as a whole;
(ii) Seller has registered shares of its Common Stock pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is in full compliance with all reporting requirements of the Exchange Act, and the Common Stock is quoted on the Nasdaq National Market (trading symbol ISEE);
(iii) Seller has delivered to Xxxxx Xxxxxx, Esq., counsel to the Buyer, with copies of Seller's most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission (the "Commission"), all Forms 10-Q and 8-K filed thereafter and all other filings made with the Commission after the filing of the most recent Form 10-K (collectively, the "Public Documents"). Except for a possible, required reclassification, on Seller's Consolidated Balance Sheets, of certain Debentures issued by the Seller on February 25, 1997, and except for certain possible, non-cash charges to income resulting therefrom, the The Public Documents, Documents at the time of their filing, filing did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading;
(iv) At the Closing, each of the Units, the Preferred Stock Debentures and the Warrants shall be duly authorized and validly issued and each of them shall be enforceable in accordance with their terms (subject to general principles of equity and bankruptcy, fraudulent conveyance, preference and other laws affecting creditors' rights generally). The Preferred Stock, Warrant Shares and Equity Shares, as well as any shares when issued and delivered upon conversion of Common Stock to be issued to the Buyer upon Debentures or exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations (the "Interest Shares") when issued and deliveredWarrants, will be duly and validly authorized and issued, fully paid and nonassessable, free from all encumbrances and restrictions other than restrictions on transfer imposed by applicable securities laws and/or this Agreement and/or the Certificate of DesignationsAgreement, and will not subject the holders thereof to personal liability by reason of being such holders. Seller has reserved 1,400,000 shares of Common Stock for issuance upon conversion of the Preferred Stock Debentures and exercise of the Warrants. There are no preemptive rights of any shareholder of Seller with respect to the Preferred StockDebentures, the Warrants or the Shares;
(v) This Agreement has been duly authorized, validly executed and delivered on behalf of Seller and is a valid and binding agreement of Seller enforceable in accordance with its terms, subject to general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors' rights generally, and Seller has full power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder;
(vi) The execution and delivery of this Agreement, the issuance of the Preferred StockDebentures, the Warrants, the Shares (upon conversion of the Preferred Stock, Debentures and the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of DesignationsWarrants) and the consummation of the transactions contemplated by this Agreement by Seller, will not conflict with or result in a breach of or a default under any of the terms or provisions of, Seller's certificate of incorporation or By-laws, or of any material provision of any indenture, mortgage, deed of trust or other material agreement or instrument to which Seller is a party or by which it or any of its properties or assets is bound, any material provision of any law, statute, rule, regulation, or any existing applicable decree, judgment or order by any court, federal or state regulatory body, administrative agency, or other governmental body having jurisdiction over Seller, or any of its properties or assets or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of Seller or any of its subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of their property or any of them is subject;
(vii) No authorization, approval, filing with or consent of any governmental body is required for the issuance and sale of the Preferred StockDebentures, the Warrants or the Shares (upon conversion of the Preferred Stock, Debentures or the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of DesignationsWarrants) as contemplated by this Agreement, except as may be required under the securities or blue sky laws of the various states;
(viii) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending or, to the actual knowledge of Seller (without inquiry), threatened, against or affecting Seller, or any of its properties, which would reasonably be anticipated to result in any material adverse change in the condition (financial or otherwise) or in the earnings, business affairs, business prospects, properties or assets of Seller and its subsidiaries, taken as a whole;
(ix) Seller shall issue the Preferred Stock Debentures in the name of Buyer in the amount specified in Section 1(i) above in denominations of One Hundred Thousand ($100,000$ ) Dollars Stated ValueDollars. Seller shall issue the Warrants in the name of Buyer in the amount specified in Section 1(i) in denominations of Twenty Thousand (20,000) Warrants. Upon conversion of the Preferred Stock or the exercise of the Warrants, or the payment, by the Seller, of any required dividends on the Preferred Stock in shares of its Common Stock which may then be resold pursuant to the Registration Statement (as hereinafter defined( ), Seller will issue one or more certificates representing the Shares, in the name of Buyer, with a legend (if applicable) substantially in the form specified by Section 2(vii) above, and in such denominations to be specified by Buyer prior to conversion or exercise, as the case may be; and
(x) Seller has not employed any investment banker, broker or finder or incurred any liability for any brokerage fees, commissions or finder's fees in connection with the transactions contemplated by this Agreement except for a fee payable by Seller, at the Closing, to Xxxxxxx & Company, Inc., in an amount equal to five (5%) percent of the principal amount of this Debenture.
Appears in 1 contract
Samples: Convertible Debentures and Warrants Subscription Agreement (Sterling Vision Inc)
SELLER'S REPRESENTATIONS AND COVENANTS. Seller represents, warrants and covenants to Buyer Buyers as follows:
(i) Seller has been duly incorporated and is validly existing and in good standing under the laws of the State of New York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as currently conducted, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to register or qualify is not reasonably anticipated to have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of Seller and its subsidiaries taken as a whole;
(ii) Bermuda. Seller has registered its common shares of its Common Stock pursuant to Section 12 12(G) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is in full compliance with all reporting requirements of the Exchange Act, and the Common Stock is quoted Seller's common shares traded on the Nasdaq National Market (trading symbol ISEE)Market, Symbol ICOMF;
(iiiii) Seller has delivered to Xxxxx Xxxxxx, Esq., counsel to the Buyer, furnished each Buyer with copies of Seller's most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission (the "CommissionSEC"), ) and all Forms 10-Q and 8-K filed thereafter and all other filings made with the Commission after the filing of the most recent Form 10-K (collectively, the "Public Documents"). Except for a possible, required reclassification, on Seller's Consolidated Balance Sheets, of certain Debentures issued by the Seller on February 25, 1997, and except for certain possible, non-cash charges to income resulting therefrom, the The Public Documents, Documents at the time of their filing complied in all material respects with the requirements of the Exchange Act, and the rules and regulations thereunder, and, as of the date of filing, did not include any an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading. Since the date of the Public Documents, Seller has not made, or been required to make, any filings with the SEC in order to ensure that the Public Documents do not, as of the date hereof, include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained therein, in light of the circumstances in which they were made, not misleading. The Seller's financial statements contained in the Public Documents (i) conform in all material respects with the rules and regulations of the Exchange Act, (ii) were prepared in accordance with generally accepted accounting principles, consistently applied, and (iii) fairly state all known liabilities (contingent or otherwise) as of the date of such financial statements that were required to be reflected in such financial statements in accordance with generally accepted accounting principles, consistently applied. Seller currently has $10,000,000 principal amount of convertible debentures outstanding, and 13,794,055 common shares, and no preferred shares, issued and outstanding;
(iii) Seller has filed all materials required to be filed pursuant to all applicable reporting obligations under either Section 13(a) or 15(d) of the Exchange Act for a period necessary to meet the eligibility requirements of the SEC with respect to the use of a Registration Statement on Form S-3 for the filing of a resale registration statement with the SEC, and Seller currently meets such eligibility requirements;
(iv) At the ClosingThe Debentures, each of the Units, the Preferred Stock and the Warrants shall be duly authorized and validly issued and each of them shall be enforceable in accordance with their terms (subject to general principles of equity and bankruptcy, fraudulent conveyance, preference and other laws affecting creditors' rights generally). The Preferred Stock, Warrant Shares and Equity Shares, as well as any shares of Common Stock to be issued to the Buyer upon exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations (the "Interest Shares") when issued and delivereddelivered upon conversion thereof, have been and will be duly and validly authorized and issued, fully and with respect to the Shares, fully-paid and nonassessable, free from all encumbrances and restrictions other than restrictions on transfer imposed by applicable securities laws and/or this Agreement and/or the Certificate of DesignationsAgreement, and will not subject the holders thereof to personal liability by reason of being such holders. Except for preemptive rights as to which Seller has reserved 1,400,000 shares of Common Stock for issuance upon conversion of the Preferred Stock and exercise of the Warrants. There received effective waivers, there are no preemptive rights of any shareholder of Seller with respect to the Preferred Stock, the Warrants Debentures or the Shares;
(v) This Agreement has been and, when issued in accordance with the terms hereof, the Debentures will be duly authorized, validly executed and delivered on behalf of Seller and is a valid and binding agreement of Seller enforceable in accordance with its respective terms, subject to general principles of equity and to bankruptcy or other similar laws affecting the enforcement of creditors' rights generally, and Seller has full power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder;
(vi) The execution and delivery of this Agreement, Agreement and the consummation of the issuance of the Preferred StockDebentures, the Warrants, and the Shares (upon conversion of the Preferred Stockthereof, the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations) and the consummation of the transactions contemplated by this Agreement by Seller, do not and will not conflict with or result in a breach by Seller of or a default under any of the terms or provisions of, Seller's certificate or constitute a default under, the articles of incorporation association or By-lawslaws of Seller, or of any material provision of any indenture, mortgage, deed of trust or other material agreement or instrument to which Seller is a party or by which it or any of its properties or assets is are bound, any material provision of any law, statute, rule, regulation, or any existing applicable decree, judgment or order by of any court, federal Federal or state State regulatory body, administrative agency, agency or other governmental body having jurisdiction over Seller, Seller or any of its properties or assets or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of Seller or any of its subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of their property or any of them is subjectassets;
(vii) No authorization, approval, filing with or consent of any governmental body is required for the issuance and sale of the Preferred StockDebentures, the Warrants or the Shares (upon conversion of the Preferred Stockthereof, or the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations) as contemplated by this Agreement, except as may be required under the securities or blue sky laws of the various states;
(viii) There Except for a fee which is payable by Seller as contemplated in the Transfer Agent Agreement to Alpine Capital for services rendered to Seller not to exceed 3% of the aggregate purchase price of the Debentures, no other person, firm or corporation will be entitled to receive any brokerage fee, commission or similar payment from Seller in connection with the consummation of the transactions contemplated hereby and Seller shall not make any such payment to any other person, firm or corporation;
(ix) Seller will comply with all applicable securities laws and regulations with respect to the sale and issuance of the Debentures (and the Shares into which they are convertible) to each Buyer, including but not limited to the filing of all reports required to be filed in connection therewith with the SEC or any stock exchange or NASDAQ or any other regulatory authority (with copies thereof provided to Buyer so long as any of the Debentures are outstanding), and shall maintain its eligibility to use Form S-3 for the filing of a resale registration statement with respect to the Shares with the SEC;
(x) Except as disclosed in the Public Documents, there is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now or pending or, to the actual knowledge of Seller (without inquiry)Seller, threatened, against or affecting Seller, or any of its properties, which would could reasonably be anticipated expected to result in any material adverse change in the business, properties, results of operations or condition (financial or otherwise) of Seller, or in which could reasonably be expected to materially and adversely affect the earnings, business affairs, business prospects, properties or assets of Seller and its subsidiaries, taken as a whole;
(ix) Seller shall issue the Preferred Stock in the name of Buyer in the amount specified in Section 1(i) above in denominations of One Hundred Thousand ($100,000) Dollars Stated Value. Seller shall issue the Warrants in the name of Buyer in the amount specified in Section 1(i) in denominations of Twenty Thousand (20,000) Warrants. Upon conversion of the Preferred Stock or the exercise of the Warrants, or the payment, by the which could reasonably be expected to interfere with Seller, of any required dividends on the Preferred Stock in shares of its Common Stock which may then be resold pursuant 's ability to the Registration Statement (as hereinafter defined), Seller will issue one or more certificates representing the Shares, in the name of Buyer, with a legend (if applicable) substantially in the form specified by Section 2(vii) above, and in such denominations to be specified by Buyer prior to conversion or exercise, as the case may be; and
(x) Seller has not employed any investment banker, broker or finder or incurred any liability for any brokerage fees, commissions or finder's fees in connection with consummate the transactions contemplated by this Agreement except for Agreement;
(xi) Seller is not, and is not an affiliate of, an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(xii) Neither Seller nor any person acting on its behalf has taken or will take any action (including, without limitation, any offering of any securities of Seller under circumstances which would require the integration of such offering with the offering of the Debentures or Shares under the Securities Act) which might subject the offering described in this Agreement, the issuance or sale of the Debentures, or the Shares to the registration requirements of Section 5 of the Securities Act;
(xiii) Seller will maintain the listing of its Shares on the NASDAQ Stock Market, and will reserve from its authorized shares of common stock a fee payable by Seller, at the Closing, sufficient number of shares to Xxxxxxx & Company, Inc., permit conversion in an amount equal to five full of all outstanding Debentures;
(5xiv) Until such time as Buyers have converted one hundred percent (100%) percent of the principal amount Debentures into Shares, Seller shall not repurchase its common shares or otherwise enter into any transaction which would cause a decrease in the number of this Debentureits common shares issued and outstanding (other than transactions that similarly decrease the number of common shares into which the Debentures are convertible);
(xv) Seller agrees that it will not issue a press release or other communication to the public containing either Buyer's name or other identifying information without said Buyer's written consent, except as required by law, including the Exchange Act, and in fulfilling its obligations under the Registration Rights Agreement (as hereafter defined);
(xvi) Seller will (i) retain the Transfer Agent as the stock transfer agent of Seller and (ii) if the Transfer Agent voluntarily or involuntarily fails to so serve, select an independent, unaffiliated replacement stock transfer agent willing to perform the duties of Transfer Agent under the Transfer Agent Agreement; and
(xvii) This Agreement, including the Exhibits hereto, does not contain an untrue statement of material fact, or, when taken as a whole, omit any material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Samples: Convertible Securities Agreement (Intelect Communications Systems LTD)
SELLER'S REPRESENTATIONS AND COVENANTS. Seller represents, warrants and covenants to the Buyer as follows:
(i) Seller has been duly incorporated and is validly existing and in good standing under the laws of the State of New YorkBermuda, with full corporate power and authority to own, lease and operate its properties and to conduct its business as currently conducted, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify is does not reasonably anticipated to have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of Seller and its subsidiaries taken as a whole;
(ii) the Seller. Seller has registered its common shares of its Common Stock pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is in full compliance with all reporting requirements of the Exchange Act, and the Common Stock is Seller's common shares are quoted on the Nasdaq National Market (trading symbol ISEEICOMF);
(iiiii) Seller has delivered to Xxxxx Xxxxxx, Esq., counsel to the Buyer, furnished Buyer with copies of Seller's most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission (the "CommissionSEC"), all Forms 10-Q and 8-K filed thereafter and all other filings made the registration statement on Form S-3 filed with the Commission after the filing of the most recent Form 10-K SEC on July 29, 1996 (collectively, the "Public Documents"). Except for a possible, required reclassification, on Seller's Consolidated Balance Sheets, of certain Debentures issued by the Seller on February 25, 1997, and except for certain possible, non-cash charges to income resulting therefrom, the The Public Documents, Documents at the time of their filing, did filing do not include any an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading. Seller currently has 12,910,537 common shares, and no preferred shares, issued and outstanding;
(iii) Seller has filed all materials required to be filed pursuant to all applicable reporting obligations under either Section 13(a) or 15(d) of the Exchange Act for a period necessary to meet the eligibility requirements of the SEC with respect to the use of a Registration Statement on Form S-3 for the filing of a resale registration statement with the SEC, and Seller currently meets such eligibility requirements;
(iv) At the Closing, each of the Units, the Preferred Stock and the Warrants shall be duly authorized and validly issued and each of them The Debentures shall be enforceable in accordance with their terms (subject to general principles of equity respective terms, and bankruptcy, fraudulent conveyance, preference and other laws affecting creditors' rights generally). The Preferred Stock, Warrant the Shares and Equity Shares, as well as any shares of Common Stock to be issued to the Buyer upon exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations (the "Interest Shares") when issued and delivereddelivered upon conversion thereof, have been and will be duly and validly authorized and issued, fully paid and nonassessable, free from all encumbrances and restrictions other than restrictions on transfer imposed by applicable securities laws and/or this Agreement and/or the Certificate of DesignationsAgreement, and will not subject the holders thereof to personal liability by reason of being such holders. Except for preemptive rights as to which Seller has reserved 1,400,000 shares of Common Stock for issuance upon conversion of the Preferred Stock and exercise of the Warrants. There received effective waivers, there are no preemptive rights of any shareholder of Seller with respect to the Preferred Stock, the Warrants Debentures or the Shares;
(v) This Agreement has been duly authorized, validly executed and delivered on behalf of Seller and is a valid and binding agreement of Seller enforceable in accordance with its terms, subject to general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors' rights generally, and Seller has full power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder;
(vi) The Company is not, and upon the execution and delivery of this Agreement, the issuance of the Preferred StockDebentures, the Warrants, the issuance of Shares (upon conversion of the Preferred Stockthereof, the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations) and the consummation of the transactions contemplated by this Agreement by Seller, will not be in conflict with or result in a breach of or a default under any of the terms or provisions of, or in default under, the Seller's certificate Memorandum of incorporation Association or By-lawsByelaws, or of any material provision of any indenture, mortgage, deed of trust or other material agreement or instrument to which Seller is a party or by which it or any of its properties or assets is are bound, any material provision of any law, statute, rule, regulation, or any existing applicable decree, judgment or order by of any court, federal or state regulatory body, administrative agency, agency or other governmental body having jurisdiction over Seller, Seller or any of its properties or assets or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Seller or any of its subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of their the property or assets of any of them is subject;
(vii) No authorization, approval, filing with or consent of any governmental body is required for the issuance and sale of the Preferred StockDebentures, the Warrants or the Shares (upon conversion of the Preferred Stockthereof, or the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations) as contemplated by this Agreement, except as may be required under the securities or blue sky laws of the various states;
(viii) There is no action, suit Seller will issue one or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending or, to the actual knowledge of Seller (without inquiry), threatened, against or affecting Seller, or any of its properties, which would reasonably be anticipated to result in any material adverse change in the condition (financial or otherwise) or in the earnings, business affairs, business prospects, properties or assets of Seller and its subsidiaries, taken as a whole;
(ix) Seller shall issue the Preferred Stock more Debentures in the name of Buyer in the amount ratios specified in Section 1(i) 1 above in denominations of One Hundred Thousand ($100,000) Dollars Stated Value. Seller shall issue the Warrants in the name of Buyer in the amount specified in Section 1(i) in denominations of Twenty Thousand (20,000) Warrants. Upon conversion of the Preferred Stock or the exercise of the Warrants, or the payment, by the Seller, of any required dividends on the Preferred Stock in shares of its Common Stock which may then be resold pursuant to the Registration Statement (as hereinafter defined)Debentures, Seller will issue one or more certificates representing the Shares, Shares in the name of Buyer, with a legend (if applicable) substantially in the form specified by Section 2(vii) above, and in such denominations to be specified by Buyer prior to conversion conversion;
(ix) Seller will comply with all applicable securities laws and regulations with respect to the sale and issuance of the Debentures (and the Shares into which they are convertible) to each Buyer, including but not limited to the filing of all reports required to be filed in connection therewith with the SEC or exerciseany stock exchange or Nasdaq or any other regulatory authority, as and shall maintain its eligibility to use Form S-3 for the case may be; andfiling of a resale registration statement with respect to the Shares with the SEC;
(x) Seller shall: (i) maintain the listing of its Shares on the Nasdaq Stock Market; (ii) reserve immediately prior to the Closing and shall continue to reserve from its authorized Common Shares a sufficient number of Common Shares to permit conversion in full of all outstanding Debentures in accordance with their respective terms; and (iii) file an Additional Shares Listing Application with Nasdaq promptly following the Closing;
(xi) Until such time as Buyer has converted one hundred percent (100%) of this Debenture into Shares, Seller shall not employed repurchase its common shares or otherwise enter into any investment banker, broker transaction which would cause a decrease in the number of its common shares issued and outstanding (other than transactions that similarly decrease the number of common shares into which the Debentures are convertible);
(xii) Seller agrees that it will not issue a press release to the public containing Buyer's name or finder or incurred any liability for any brokerage fees, commissions or finderother identifying information without such Buyer's fees written consent and in connection fulfilling its obligations under the Registration Rights Agreement. Buyer acknowledges that this Agreement and the related documents may be filed with the transactions contemplated by this Agreement except for a fee payable by Seller, at SEC; and
(xiii) Subject in part to the Closing, to Xxxxxxx & Company, Inc., in an amount equal to five (5%) percent truth and accuracy of the principal amount Buyer's representations and warranties in Section 2, the offer, sale and issuance of this Debenturethe Debentures are exempt from the registration requirements of the Securities Act and applicable state securities laws.
Appears in 1 contract
Samples: Convertible Securities Subscription Agreement (Intelect Communications Systems LTD)
SELLER'S REPRESENTATIONS AND COVENANTS. Seller represents, warrants and covenants to Buyer as follows:
(i) The Seller has been duly incorporated and is validly existing and in good standing under the laws of the State of New YorkNevada, with full corporate power and authority to own, lease and operate its properties and to conduct its business as currently conducted, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to register or qualify is not reasonably anticipated to have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of Seller and its subsidiaries taken as a whole;.
(ii) The Seller has registered shares of its Common Stock pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is in full compliance with all reporting requirements of the Exchange ActNational Association of Securities Dealers ("NASD"), and the Common Stock is quoted on the Nasdaq National Market NASDAQ Over-the-Counter Bulletin Board (trading symbol ISEEsymbol: VTIX);.
(iii) The Seller has delivered to Xxxxx Xxxxxxfurnished Equity Services, Esq., counsel to the Buyer, Ltd. ("ESL") with copies of the Seller's most recent Annual Report on Form 10-K Business Plan dated August, 1997, and all documents filed with the Securities and Exchange Commission (the "Commission"), all Forms 10-Q ) and 8-K filed thereafter and all other filings made with the Commission after the filing of the most recent Form 10-K NASD (collectively, the "Public Disclosure Documents"). Except for a possible, required reclassification, on as disclosed in Seller's Consolidated Balance SheetsBusiness Plan, of certain Debentures immediately prior to Closing there shall be no other capital stock issued by and outstanding, nor shall there be outstanding any rights to acquire, commitments to issue or securities convertible into capital stock other than as disclosed in the Seller on February 25, 1997, and except for certain possible, non-cash charges Disclosure Documents or as previously disclosed in writing to income resulting therefrom, the Public Documents, ESL. The Disclosure Documents at the time of their filing, filing did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, made not misleading;.
(iv) At Except as shown on the Seller's most recent audited financial statements dated 12/31/96, prepared by Childs & Co., the Seller's independent certified public accountants, the Seller has no other indebtedness outstanding immediately prior to the Closing, each of . (09/30/97 Interim.)
(v) Upon issuance at the Units, the Preferred Stock and the Warrants shall be duly authorized and validly issued and each of them shall be enforceable Closing in accordance with their terms (this Agreement, the Shares will be duly and validly authorized and issued, fully paid and nonassessable, free from all encumbrances and restrictions other than restrictions on transfer imposed by applicable securities laws and/or this INVESTOR SUBSCRIPTION AGREEMENT OF VENTURI TECHNOLOGY ENTERPRISES, INC. Page 2 4 Agreement, and will not subject the holders thereof to general principles personal liability by reason of equity and bankruptcy, fraudulent conveyance, preference and other laws affecting creditors' rights generally)being such holders. The Preferred Stock, Warrant Shares and Equity Shares, as well as any shares of Common Stock to be issued to the Buyer upon exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations (the "Interest Shares") Stock, when issued and delivereddelivered upon conversion of the Series B Preferred Stock, will be duly and validly authorized and issued, fully paid and nonassessable, free from all encumbrances and restrictions other than restrictions on transfer imposed by applicable securities laws and/or this Agreement and/or the Certificate of DesignationsAgreement, and will not subject the holders thereof to personal liability by reason of being such holders. Seller has reserved 1,400,000 shares of Common Stock for issuance upon conversion of the Preferred Stock and exercise of the Warrants. There are no preemptive rights of any shareholder of Seller with respect to the Preferred Stock, the Warrants or the Shares;.
(vvi) This Agreement has been duly authorized, validly executed and delivered on behalf of the Seller and is a valid and binding agreement of the Seller enforceable in accordance with its terms, subject to general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors' rights generally, and the Seller has full power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder;.
(vivii) The execution and delivery of this Agreement, the issuance of the Preferred StockShares, the Warrants, the Shares (shares of Common Stock issuable upon conversion of the Series B Preferred Stock, the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations) and the consummation of the transactions contemplated by this Agreement by SellerAgreement, will not conflict with or result in a breach of or a default under any of the terms or provisions of, the Seller's certificate articles of incorporation or By-laws, or of any material provision of any indenture, mortgage, deed of trust or other material agreement or instrument to which the Seller is a party or by which it or any of its properties or assets is bound, any material provision of any law, statute, rule, regulation, or any existing applicable decree, judgment or order by any court, federal or state regulatory body, administrative agency, or other governmental body having jurisdiction over the Seller, or any of its properties or assets or and will not result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Seller or any of its subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of their property or any of them is subject;.
(viiviii) No authorization, approval, filing with or consent of any governmental body is required for the issuance and sale of the Preferred Stock, the Warrants or the Shares (upon conversion of the Preferred Stock, or the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations) as contemplated by this Agreement, except as may be required under the securities or blue sky laws of the various states;Shares.
(viiiix) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending or, to the actual knowledge of Seller (without inquiry), threatened, or threatened against or affecting the Seller, or any of its properties, which would reasonably be anticipated to result in any material adverse change in the condition (financial or otherwise) or in the earnings, business affairs, business prospects, properties or assets of Seller and its subsidiaries, taken as a whole;the Seller.
(ixx) Seller shall issue Subsequent to the Preferred Stock dates as of which information is given in the name of Buyer Disclosure Documents, except as contemplated herein, the Seller has not incurred any material liabilities or material obligations, direct or contingent, or entered into any material transactions not in the amount specified ordinary course of business, and there has not been any change in Section 1(iits capitalization or any material adverse change in its condition (financial or otherwise) above net worth, results of operations or prospects. 5 (xi) The Seller has conducted, is conducting and will conduct its business so as to comply in denominations all material respects with all applicable statutes and regulations, and the Seller is not charged with and, to the knowledge of One Hundred Thousand ($100,000) Dollars Stated Value. Seller shall issue the Warrants in the name of Buyer in the amount specified in Section 1(i) in denominations of Twenty Thousand (20,000) Warrants. Upon conversion of the Preferred Stock or the exercise of the Warrants, or the payment, by the Seller, is not under investigation with respect to any violation of any required dividends statutes or regulations nor is it the subject of any pending or threatened adverse proceedings by any regulatory authority having jurisdiction over its business or operations.
(xii) Except as set forth in the Disclosure Documents, the Seller has good and marketable title to all properties and assets described therein as owned by it, free and clear of all liens, charges, encumbrances, or restrictions.
(xiii) The Seller has filed all necessary federal and state income and franchise tax returns and has paid all taxes shown as due thereon.
(xiv) The Seller has no knowledge of any tax deficiency that might be asserted against it that might materially and adversely affect its business or properties.
(xv) The Seller maintains insurance of the types and in amounts generally deemed adequate for its business and consistent with insurance coverage maintained by similar companies and businesses, including, but not limited to, insurance covering all real and personal property owned or leased by the Seller against theft, damage, destruction, acts of vandalism, products liability and all other risks customarily insured against, all of which insurance is in full force and effect.
(xvi) No labor disturbance by the employees of the Seller exists or is imminent that could reasonably be expected to have a material adverse affect on the Preferred Stock conduct of the business, operations, financial condition, or income of the Seller.
(xvii) Neither the Seller nor any employee or agent of the Seller has made any payment of funds of the Seller or received or retained any funds in shares violation of law.
(xviii) Subject in part to the truth and accuracy of Buyer's representations set forth in this Agreement, the offer, sale and issuance of the Shares are exempt from registration requirements of the 1933 Act, and neither the Seller nor any authorized agent acting on its behalf will take any action hereafter that will cause the loss of such exemption.
(xix) The Seller has sufficient title and ownership of all trademarks, service marks, trade names, copyrights, patents, trade secrets and other proprietary rights necessary for its business as now conducted and as proposed to be conducted as described in the Disclosure Documents without any conflict with or infringement of the rights of others. Except as set forth in the Disclosure Documents, there are no material outstanding options, licenses or agreements of any kind relating to the foregoing, nor is the Seller bound by or party to any material options, licenses or agreements of any kind with respect to the trademarks, service marks, trade names, copyrights, patents, trade secrets, licenses and other proprietary rights of any other person or entity. The Seller is not aware that any of its Common Stock which may then executive officers is obligated under any contract (including licenses, covenants or INVESTOR SUBSCRIPTION AGREEMENT OF VENTURI TECHNOLOGY ENTERPRISES, INC. Page 4 6 commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency that would interfere with the use of his or her best efforts to promote the interest of the Seller or that would conflict with the Seller's business as proposed to be resold pursuant to the Registration Statement conducted.
(as hereinafter defined), Seller will issue one xx) Except for agreements explicitly contemplated hereby or more certificates representing the Shares, set forth in the name Disclosure Documents, there are no agreements between the Seller and any of Buyerits officers, with a legend directors, affiliates or any affiliate thereof.
(if applicablexxi) substantially No representation or warranty of the Seller contained in the form specified by this Section 2(vii) above3, and no statement contained in such denominations any exhibit, schedule, certificate, list, summary or other disclosure document provided or to be specified by provided to Buyer prior pursuant hereto or in connection with the transactions contemplated hereby, contains or will contain any untrue statement of a material fact, or omits or will omit to conversion or exercise, as the case may be; andstate any material fact which is necessary in order to make statements contained therein not misleading.
(xxxii) Seller has not employed any investment banker, broker or finder or incurred any liability for any brokerage fees, commissions or finder's fees in connection with the transactions contemplated by this Agreement except for that Seller has retained, directly or indirectly, Equity Services, Ltd. ("ESL") and Capital Solutions, Inc. ("CSI") ESL is entitled to receive a fee payable by Seller, at the Closing, to Xxxxxxx & Company, Inc., in consisting of an amount equal to five seven percent (57%) percent of the principal aggregate purchase price of the Shares, Five Thousand (5,000) shares of Series B Preferred Stock, reimbursement of expenses and options to purchase shares of Common Stock. CSI is entitled to receive a fee consisting of an amount equal to two percent (2%) of this Debenturethe aggregate purchase price of the Shares and reimbursement of expenses.
Appears in 1 contract
Samples: Investor Subscription Agreement (Venturi Technologies Inc)
SELLER'S REPRESENTATIONS AND COVENANTS. Seller represents, warrants and covenants to Buyer as follows:
(i) Seller has been duly incorporated and is validly existing and in good standing under the laws of the State of New YorkDelaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as currently conducted, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to register or qualify is not reasonably anticipated to have a material adverse effect on the condition (financial or otherotherwise), business, properties, net worth or results of operations of Seller and its subsidiaries taken as a wholeSeller;
(ii) Seller has registered shares of its Common Stock pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is in full compliance with all reporting requirements of the Exchange Act, and the Common Stock is quoted on the Nasdaq National Market SmallCap System (trading symbol ISEEINBC);
(iii) Seller has delivered to Xxxxx Xxxxxx, Esq., counsel to the Buyer, furnished Buyer with (a) copies of Seller's Confidential Private Placement Memorandum dated November 1, 1997, which contained, among other items, its most recent Annual Report on Form 10-K KSB (the "Form 10-KSB") filed with the Securities and Exchange Commission (the "Commission"), all Forms 10-Q ) and 8-K filed thereafter and all other filings made with the Commission after the filing of the most recent its Form 10-K QSB for the quarterly period ended June 30, 1997 (collectivelythe "June Form 10-QSB"), and (b) a copy of its Form 10-QSB for the quarterly period ended September 30, 1997 (collectively with the Form 10-KSB and the June Form 10-QSB, the "Public Documents"). Except for a possible, required reclassification, on Seller's Consolidated Balance Sheets, of certain Debentures issued by the Seller on February 25, 1997, and except for certain possible, non-cash charges to income resulting therefrom, the The Public Documents, Documents at the time of their filing, filing did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading;
(iv) At the Closing, each of the Units, the Preferred Stock and the Warrants Shares shall be duly authorized and validly issued and when issued and delivered, each of them shall be enforceable in accordance with their terms (subject to general principles of equity and bankruptcy, fraudulent conveyance, preference and other laws affecting creditors' rights generally). The Preferred Stock, Warrant Shares and Equity Shares, as well as any shares of Common Stock to be issued to the Buyer upon exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations (the "Interest Shares") Stock, when issued and delivereddelivered upon conversion of the Series B Preferred Stock, will be duly and validly authorized and issued, fully paid and nonassessable, free from all encumbrances and restrictions other than restrictions on transfer imposed by applicable securities laws and/or this Agreement and/or the Certificate of DesignationsAgreement, and will not subject the holders thereof to personal liability by reason of being such holders. Seller has reserved 1,400,000 shares of Common Stock for issuance upon conversion of the Preferred Stock and exercise of the Warrants. There are no preemptive rights of any shareholder of Seller with respect to the Preferred Stock, the Warrants or the Shares;
(v) This Agreement has been duly authorized, validly executed and delivered on behalf of Seller and is a valid and binding agreement of Seller enforceable in accordance with its terms, subject to general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors' rights generally, and Seller has full power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder;
(vi) The execution and delivery of this Agreement, the issuance of the Preferred Stock, the Warrants, the Shares (upon conversion of the Preferred Stock, the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations) and the consummation of the transactions contemplated by this Agreement by Seller, will not conflict with or result in a breach of or a default under any of the terms or provisions of, Seller's certificate of incorporation or By-laws, or of any material provision of any indenture, mortgage, deed of trust or other material agreement or instrument to which Seller is a party or by which it or any of its properties or assets is bound, any material provision of any law, statute, rule, regulation, or any existing applicable decree, judgment or order by any court, federal or state regulatory body, administrative agency, or other governmental body having jurisdiction over Seller, or any of its properties or assets or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of Seller or any of its subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of their property or any of them is subject;
(vii) No authorization, approval, filing with or consent of any governmental body is required for the issuance and sale of the Preferred Stock, the Warrants or the Shares (upon conversion of the Preferred Stock, or the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations) as contemplated by this Agreement, except as may be required under the securities or blue sky laws of the various states;
(viii) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending or, to the actual knowledge of Seller (without inquiry), threatened, against or affecting Seller, or any of its properties, which would reasonably be anticipated to result in any material adverse change in the condition (financial or otherwise) or in the earnings, business affairs, business prospects, properties or assets of Seller and its subsidiaries, taken as a whole;
(ix) Seller shall issue the Preferred Stock in the name of Buyer in the amount specified in Section 1(i) above in denominations of One Hundred Thousand ($100,000) Dollars Stated Value. Seller shall issue the Warrants in the name of Buyer in the amount specified in Section 1(i) in denominations of Twenty Thousand (20,000) Warrants. Upon conversion of the Preferred Stock or the exercise of the Warrants, or the payment, by the Seller, of any required dividends on the Preferred Stock in shares of its Common Stock which may then be resold pursuant to the Registration Statement (as hereinafter defined), Seller will issue one or more certificates representing the Shares, in the name of Buyer, with a legend (if applicable) substantially in the form specified by Section 2(vii) above, and in such denominations to be specified by Buyer prior to conversion or exercise, as the case may be; and
(x) Seller has not employed any investment banker, broker or finder or incurred any liability for any brokerage fees, commissions or finder's fees in connection with the transactions contemplated by this Agreement except for a fee payable by Seller, at the Closing, to Xxxxxxx & Company, Inc., in an amount equal to five (5%) percent of the principal amount of this Debenture.
Appears in 1 contract
SELLER'S REPRESENTATIONS AND COVENANTS. Seller represents, warrants and covenants to Buyer as follows:
(i) Seller has been duly incorporated and is validly existing and in good standing under the laws of the State of New York, with full corporate power and authority to own, lease and operate its properties and to conduct its business as currently conducted, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to register or qualify is not reasonably anticipated to have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of Seller and its subsidiaries taken as a whole;
(ii) Seller has registered shares of its Common Stock pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is in full compliance with all reporting requirements of the Exchange Act, and the Common Stock is quoted on the Nasdaq National Market (trading symbol ISEE);
(iii) Seller has delivered to Xxxxx Xxxxxx, Esq., counsel to the Buyer, furnished Buyer with copies of Seller's most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission (the "Commission"), all Forms 10-Q and 8-K filed thereafter and all other filings made with the Commission after the filing of the most recent Form 10-K (collectively, the "Public Documents")) and the Letter. Except for a possible, required reclassification, on Seller's Consolidated Balance Sheets, of certain Debentures issued by the Seller on February 25, 1997, and except for certain possible, non-cash charges to income resulting therefrom, the The Public Documents, Documents at the time of their filing, filing did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading. The Letter contains additional, current material information about Seller not previously disclosed;
(iv) At the Closing, each of the Units, the Preferred Stock Debentures and the Warrants shall be duly authorized and validly issued and when issued and delivered, the Bonus Warrants shall be duly authorized and validly issued and each of them shall be enforceable in accordance with their terms (subject to general principles of equity and bankruptcy, fraudulent conveyance, preference and other laws affecting creditors' rights generally). The Preferred Stock, Warrant Shares and Equity Shares, as well as any shares when issued and delivered upon conversion of Common Stock to be the Debentures or exercise of the Warrants, and the Bonus Shares when issued to the Buyer upon exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations (the "Interest Shares") when issued and deliveredBonus Warrants, will be duly and validly authorized and issued, fully paid and nonassessable, free from all encumbrances and restrictions other than restrictions on transfer imposed by applicable securities laws and/or this Agreement and/or the Certificate of DesignationsAgreement, and will not subject the holders thereof to personal liability by reason of being such holders. Seller has reserved 1,400,000 2,477,506 shares of Common Stock equal to 19.999% of the shares of Common Stock to be outstanding on the date of Closing for issuance upon conversion of the Preferred Stock Debentures and exercise of the Warrants and the Bonus Warrants. There are no preemptive rights of any shareholder of Seller with respect to the Preferred StockDebentures, the Warrants Warrants, the Bonus Warrants, the Shares or the Bonus Shares;
(v) This Agreement has been duly authorized, validly executed and delivered on behalf of Seller and is a valid and binding agreement of Seller enforceable in accordance with its terms, subject to general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors' rights generally, and Seller has full power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder;
(vi) The execution and delivery of this Agreement, the issuance of the Preferred StockDebentures, the Warrants, the Bonus Warrants, the Shares (upon conversion of the Preferred Stock, Debentures and the exercise of the Warrants and/or pursuant to Subsection 1.2(dWarrants) and the Bonus Shares (upon exercise of the Certificate of Designations) Bonus Warrants), and the consummation of the transactions contemplated by this Agreement by Seller, will not conflict with or result in a breach of or a default under any of the terms or provisions of, Seller's certificate of incorporation or By-laws, or of any material provision of any indenture, mortgage, deed of trust or other material agreement or instrument to which Seller is a party or by which it or any of its properties or assets is bound, any material provision of any law, statute, rule, regulation, or any existing applicable decree, judgment or order by any court, federal or state regulatory body, administrative agency, or other governmental body having jurisdiction over Seller, or any of its properties or assets or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of Seller or any of its subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of their property or any of them is subject;
(vii) No authorization, approval, filing with or consent of any governmental body is required for the issuance and sale of the Preferred StockDebentures, the Warrants or Warrants, the Bonus Warrants, the Shares (upon conversion of the Preferred Stock, Debentures or the exercise of the Warrants and/or pursuant to Subsection 1.2(dWarrants) or the Bonus Shares (upon exercise of the Certificate of DesignationsBonus Warrants) as contemplated by this Agreement, except as may be required under the securities or blue sky laws of the various states;
(viii) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending or, to the actual knowledge of Seller (without inquiry), threatened, against or affecting Seller, or any of its properties, which would reasonably be anticipated to result in any material adverse change in the condition (financial or otherwise) or in the earnings, business affairs, business prospects, properties or assets of Seller and its subsidiaries, taken as a whole;
(ix) Seller shall issue the Preferred Stock Debentures in the name of Buyer in the amount specified in Section 1(i) above in denominations of One Hundred Thousand _________ Dollars ($100,000) Dollars Stated Value_____). Seller shall issue the Warrants in the name of Buyer in the amount specified in Section 1(i) in denominations of Twenty Thousand ________(20,000) Warrants. Upon conversion of the Preferred Stock or the exercise of the Warrants, or the payment, by the Seller, of any required dividends on the Preferred Stock in shares of its Common Stock which may then be resold pursuant to the Registration Statement (as hereinafter defined____), Seller will issue one or more certificates representing the Shares, in the name of Buyer, with a legend (if applicable) substantially in the form specified by Section 2(vii) above, and in such denominations to be specified by Buyer prior to conversion or exercise, as the case may be; and
(x) Seller has not employed any investment banker, broker or finder or incurred any liability for any brokerage fees, commissions or finder's fees in connection with the transactions contemplated by this Agreement except for a fee payable by Seller, at the Closing, to Xxxxxxx & Company, Inc., in an amount equal to five (5%) percent of the principal amount of this Debenture.
Appears in 1 contract
Samples: Convertible Debentures and Warrants Subscription Agreement (Sterling Vision Inc)
SELLER'S REPRESENTATIONS AND COVENANTS. Seller represents, warrants and covenants to Buyer as follows:
(i) Seller has been duly incorporated and is validly existing and in good standing under the laws of the State of New YorkDelaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as currently conducted, and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to register or qualify is not reasonably anticipated to have a material adverse effect on the condition (financial or otherotherwise), business, properties, net worth or results of operations of Seller and its subsidiaries taken as a wholeSeller;
(ii) Seller has registered shares of its Common Stock pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and is in full compliance with all reporting requirements of the Exchange Act, and the Common Stock is quoted on the Nasdaq National Market (trading symbol ISEE);
(iii) Seller has delivered filed with the Commission a registration statement (the "Registration Statement") including the Prospectus. The sale of the Securities are to Xxxxx Xxxxxx, Esq., counsel be made solely pursuant to the Buyer, Prospectus;
(iv) Seller has furnished Buyer with copies of Seller's most recent Annual Report on Form 10-K KSB (the "Form 10-KSB") filed with the Securities and Exchange Commission Commission, its Form 10- QSB for the quarterly period ended September 30, 1997 (the "Commission"), all Forms 10-Q and 8-K filed thereafter and all other filings made with the Commission after the filing of the most recent Form 10-K QSB") and the Prospectus (collectivelycollectively with the Form 10-KSB and the Form 10-QSB, the "Public Documents"). Except for a possible, required reclassification, on Seller's Consolidated Balance Sheets, of certain Debentures issued by the Seller on February 25, 1997, and except for certain possible, non-cash charges to income resulting therefrom, the The Public Documents, Documents at the time of their filing, filing did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading;
(ivv) At the Closing, each of the Units, the Preferred Stock The Shares and the Warrants Option Shares shall be duly authorized and validly issued and when issued and delivered, each of them shall be enforceable in accordance with their terms (subject to general principles of equity and bankruptcy, fraudulent conveyance, preference and other laws affecting creditors' rights generally). The Preferred Stock, Warrant Shares and Equity Shares, as well as any shares ;
(vi) Seller shall not issue a fractional share of Common Stock to be issued upon the issuance of any Shares or Option Shares. Instead, Seller shall round any fractional share to the Buyer upon exercise next whole share of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations (the "Interest Shares") when issued and delivered, will be duly and validly authorized and issued, fully paid and nonassessable, free from all encumbrances and restrictions other than restrictions on transfer imposed by applicable securities laws and/or this Agreement and/or the Certificate of Designations, and will not subject the holders thereof to personal liability by reason of being such holders. Seller has reserved 1,400,000 shares of Common Stock for issuance upon conversion of the Preferred Stock and exercise of the Warrants. There are no preemptive rights of any shareholder of Seller with respect to the Preferred Stock, the Warrants or the Sharessecurity;
(vvii) This Agreement has been duly authorized, validly executed and delivered on behalf of Seller and is a valid and binding agreement of Seller enforceable in accordance with its terms, subject to general principles of equity and to bankruptcy or other laws affecting the enforcement of creditors' rights generally, and Seller has full power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder;
(viviii) The execution and delivery of this Agreement, the issuance of the Preferred Stock, Shares and the Warrants, the Shares (shares of Common Stock issuable upon conversion of the Preferred Stock, the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations) Options and the consummation of the transactions contemplated by this Agreement by Seller, will not conflict with or result in a breach of or a default under any of the terms or provisions of, Seller's certificate of incorporation or By-laws, or of any material provision of any indenture, mortgage, deed of trust or other material agreement or instrument to which Seller is a party or by which it or any of its properties or assets is bound, any material provision of any law, statute, rule, regulation, or any existing applicable decree, judgment or order by any court, federal or state regulatory body, administrative agency, or other governmental body having jurisdiction over Seller, or any of its properties or assets or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of Seller or any of its subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of their property or any of them is subject;
(viiix) No Except as disclosed herein, no authorization, approval, filing with or consent of any governmental body is required for the issuance and sale of the Preferred Stock, the Warrants or the Shares (upon conversion of the Preferred Stock, or the exercise of the Warrants and/or pursuant to Subsection 1.2(d) of the Certificate of Designations) as contemplated by this Agreement, except as may be required under the securities or blue sky laws of the various statesShares;
(viiix) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending or, to the actual knowledge of Seller (without inquiry), threatened, against or affecting Seller, or any of its properties, which would reasonably be anticipated to result in any material adverse change in the condition (financial or otherwise) or in the earnings, business affairs, business prospects, properties or assets of Seller and its subsidiariesSeller, taken except as a wholeset forth in the Public Documents;
(ixxi) Subsequent to the dates as of which information is given in the Public Documents, except as contemplated herein, Seller has not incurred any material liabilities or material obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, and there has not been any change in its capitalization or any material adverse change in its condition (financially or other), net worth, results of operations or prospectus;
(xii) Seller shall issue has conducted, is conducting and will conduct its business so as to comply in all material respects with all applicable statutes and regulations, and Seller is not charged with and, to the Preferred Stock knowledge of Seller, is not under investigation with respect to any violation of any statutes or regulations nor is it the subject of any pending or threatened adverse proceedings by any regulatory authority having jurisdiction over its business or operations except as disclosed in the name of Buyer Public Documents;
(xiii) Except as set forth in the amount specified Public Documents, Seller has good and marketable title to all properties and assets described therein as owned by it, free and clear of all liens, charges, encumbrances, or restrictions;
(xiv) Seller has filed all necessary federal and state income and franchise tax returns and has paid all taxes shown as due thereon;
(xv) Seller has no knowledge of any tax deficiency that might be asserted against it that might materially and adversely affect its business or properties;
(xvi) Seller maintains insurance of the types and in Section 1(iamounts generally deemed adequate for its business and consistent with insurance coverage maintained by similar companies and businesses, including, but not limited to, insurance covering all real and personal property owned or leased by Seller against theft, damage, destruction, acts of vandalism, products liability and all other risks customarily insured against, all of which insurance is in full force and effect;
(xvii) above No labor disturbance by the employees of Seller exists or is imminent that could reasonably be expected to have a material adverse affect on the conduct of the business, operations, financial condition or income of Seller;
(xviii) To the best of the knowledge of Seller's management, neither Seller nor any employee or agent of Seller has made any payment of funds of Seller or received or retained any funds in denominations violation of One Hundred Thousand law;
($100,000xix) Dollars Stated ValueSeller has sufficient title and ownership of all trademarks, service marks, trade names, copyrights, patents, trade secrets and other proprietary rights necessary for its business as now conducted and as proposed to be conducted as described in the Public Documents without any conflict with or infringement of the rights of others. Except as set forth in the Public Documents, there are no material outstanding options, licenses or agreements of any kind relating to the foregoing, nor is Seller bound by or party to any material options, licenses or agreements of any kind with respect to the trademarks, service marks, trade names, copyrights, patents, trade secrets, licenses and other proprietary rights of any other person or entity. Seller shall issue the Warrants in the name is not aware that any of Buyer in the amount specified in Section 1(iits executive officers is obligated under any contract (including licenses, covenants or commitments of any nature) in denominations of Twenty Thousand (20,000) Warrants. Upon conversion of the Preferred Stock or the exercise of the Warrantsother agreement, or the paymentsubject to any judgment, by the Seller, decree or order of any required dividends on court or administrative agency that would interfere with the Preferred Stock in shares use of its Common Stock which may then be resold pursuant his or her best efforts to promote the Registration Statement (interest of Seller or that would conflict with Seller's business as hereinafter defined), Seller will issue one or more certificates representing the Shares, in the name of Buyer, with a legend (if applicable) substantially in the form specified by Section 2(vii) above, and in such denominations proposed to be specified by Buyer prior to conversion or exercise, as the case may beconducted; and
(xxx) Except for agreements explicitly contemplated hereby or set forth in the Public Documents, there are no other agreements between Seller has not employed and any investment bankerof its officers, broker directors, affiliates or finder or incurred any liability for any brokerage fees, commissions or finder's fees in connection with the transactions contemplated by this Agreement except for a fee payable by Seller, at the Closing, to Xxxxxxx & Company, Inc., in an amount equal to five (5%) percent of the principal amount of this Debentureaffiliate thereof.
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