Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, Cruel World, Inc., a Delaware corporation By: --------------------------------- Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Acting severally on behalf of themselves and the several Underwriters named in SCHEDULE A hereto. By: Xxxxxx Xxxxxx Partners LLC By: ------------------------------------ Name: Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- Xxxxxx Xxxxxx Partners LLC.............................................................. [Underwriter] [Underwriter]........................................................................... TOTAL........................................................................ EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL (i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company. (ii) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus. (iii) All of the outstanding shares of capital stock of the Company prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid, non-assessable and not subject to any preemptive or similar rights. (iv) The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights. (v) The Underwriting Agreement has been duly authorized, executed and delivered by the Company. (vi) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares. (vii) The statements (A) in the Prospectus under the captions "Business-Intellectual Property and Licensing Rights," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" and (B) in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.
Appears in 1 contract
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 78, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yoursVERY TRULY YOURS, Cruel WorldCACHE, Inc., a Delaware corporation INC. By: --------------------------------- Name: Title: The Selling Shareholders named in Schedule B hereto, acting severally By: Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx Partners XXXXXX XXXXXX PARTNERS LLC US BANCORP XXXXX XXXXXXX INC. XX XXXXX SECURITIES CORPORATION Acting severally on behalf of themselves and the several Underwriters named in SCHEDULE Schedule A hereto. By: Xxxxxx Xxxxxx Partners LLC By: ------------------------------------ Name: Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- Xxxxxx Xxxxxx Partners LLC.............................................................. [Underwriter] [Underwriter]........................................................................... TOTAL........................................................................ EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL:
(i) i. The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the CompanyCompany and its subsidiaries, taken as a whole.
(ii) . Each subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
iii. All of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims.
iv. The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus.
(iii) All of the outstanding v. The shares of capital stock of Common Stock (including the Company Shares to be sold by the Selling Shareholders) outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid, paid and non-assessable and not subject to any preemptive or similar rightsassessable.
(iv) vi. The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(v) vii. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(vi) viii. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(vii) ix. The statements (A) in the Prospectus under the captions "Business-Intellectual Property and Licensing RightsRisks Related to Xxxxxx Xxxxxxxx LLP," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" and (B) in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.
x. To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described or incorporated by reference in the Registration Statement or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described or filed or incorporated as required.
xi. The Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as such term is defined in the Investment Company Act of 1940, as amended.
xii. The Company and its subsidiaries (A) are in compliance with any and all applicable Environmental Laws, (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
xiii. Each document filed by the Company pursuant to the Exchange Act (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) and incorporated or deemed to be incorporated by reference in the Prospectus complied when so filed as to form in all material respects with the Exchange Act and such counsel has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents where filed, not misleading.
xiv. The Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of each of the Selling Shareholders.
xv. The execution and delivery by each Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, the Underwriting Agreement and the Custody Agreement and Powers of Attorney of such Selling Shareholder will not contravene any provision of applicable law, or the [articles/certificate] of incorporation or by-laws of such Selling Shareholder (if such Selling Shareholder is a corporation), or, to such counsel's knowledge, any trust or other agreement or other instrument binding upon such Selling Shareholder or, to such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under the Underwriting Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with offer and sale of the Shares.
xvi. Each of the Selling Shareholders has valid title to the Shares to be sold by such Selling Shareholder and the legal right and power, and all authorization and approval required by law, to enter into the Underwriting Agreement and the Custody Agreement and Power of Attorney of such Selling Shareholder and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder and all authorizations and approvals required by law and under each such Selling Shareholder's charter or bylaws, partnership agreement, trust agreement or other organizational documents to enter into this Agreement, the Custody Agreement and the Power of Attorney, to sell and deliver the Shares to be sold by such Selling Shareholders pursuant to this Agreement and to comply with its other obligations hereunder and thereunder have been obtained.
xvii. The Custody Agreement and the Power of Attorney of each Selling Shareholder have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
xviii. Delivery of the Shares to be sold by each Selling Shareholder pursuant to this Agreement will pass title to such Shares free and clear of any security interests, claims, liens, equities and other encumbrances.
xix. Such counsel (A) is of the opinion that the Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (B) has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Registration Statement and the prospectus included therein at the time the Registration Statement became effective 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 not misleading and (C) has no reason to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Prospectus contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Cache Inc)
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7herein, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the indemnification and contribution provisions of Section 7 hereto herein fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreementunderstanding, kindly please sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all us four counterparts hereof, and upon the acceptance hereof by you this letter and such acceptance hereof shall become constitute a binding agreement in accordance with its termsamong each of the Underwriters and the Company. Very truly yours, Cruel WorldXXXXXXXX HOMEBUILDING COMPANIES, Inc., a Delaware corporation INC. By: --------------------------------- Name: Title: SELLING STOCKHOLDER By: Xxxxx Xxxxxxxx As Attorney-in-Fact acting on behalf of each of the Selling Stockholders named in Schedule II to this Agreement Accepted as of the date hereof Xxxxxx Xxxxxx Partners at New York City, New York: BANC OF AMERICA SECURITIES LLC Acting severally By: Banc of America Securities LLC on behalf of themselves and each of the several Underwriters named in SCHEDULE A hereto. By: Xxxxxx Xxxxxx Partners LLC By: ------------------------------------ Name: Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- Banc of America Securities LLC 0 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Facsimile: ( ) - BB&T Capital Markets, a Division of Xxxxx & Xxxxxxxxxxxx, Inc. 000 Xxxx Xxxx Xxxxxx Partners LLC.............................................................. [Underwriter] [Underwriter]........................................................................... TOTAL........................................................................ EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL
Xxxxxxxx, Xxxxxxxx 00000 Facsimile: (i000) The Company has been duly incorporated000-0000 Xxxxxx, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporationXxxxx Xxxxx, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationIncorporated 000 Xxxxx Xxxxxx Xxxxxxxxx, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company.
XX 00000 Facsimile: (ii000) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus.
000-0000 Xxxxxx X. Xxxxx & Co. 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000 XxXxxx, VA 22102 Facsimile: (iii000) All of the outstanding shares of capital stock of the Company prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid, non000-assessable and not subject to any preemptive or similar rights.
(iv) The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(v) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(vi) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(vii) The statements (A) in the Prospectus under the captions "Business-Intellectual Property and Licensing Rights," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" and (B) in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.0000 Total
Appears in 1 contract
Samples: Underwriting Agreement (Comstock Homebuilding Companies, Inc.)
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus prospectus, the Basic Prospectus, the Prospectus Supplement and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, Cruel WorldISTA PHARMACEUTICALS, Inc., a Delaware corporation INC. By: --------------------------------- /s/ Xxxxxxx Xxxxx, Xx. Name: Xxxxxxx Xxxxx, Xx. Title: President and Chief Executive Officer Accepted as of the date hereof Xxxxxx Xxxxxx Partners Banc of America Securities LLC Acting severally on behalf of themselves and the several Underwriters named in SCHEDULE Schedule A hereto. By: Banc of America Securities LLC By: /s/ Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx Title: Managing Director Banc of America Securities LLC 2,310,000 Xxxxxx Xxxxxx Partners LLC By2,035,000 Lazard Freres & Co. LLC 880,000 X.X. Xxxxxxxxx, Towbin LLC 275,000 Total 5,500,000 Xxxxxxxx Xxxxx, Xx. Ph.D. Xxxxxx X. Xxxxxxx Xxxx X. Xxxxxxxx, Ph.D. Xxxxxxxx X. XxXxxxxx Xxxx XxXxxxxx Xxxxxx X. Xxxxx Xxxxxx X. Xxxxxxxxxx Xxxxxxxx X. XxXxxxx Sprout Capital IX, L.P. Sprout Entrepreneurs’ Fund L.P. Sprout IX Plan Investors, L.P. January , 0000 Xxxx xx Xxxxxxx Securities LLC Xxxxxx Xxxxxx Partners LLC As Representatives of the several Underwriters c/o Banc of America Securities LLC 0 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Re: ------------------------------------ NamePurchase of 5,500,000 shares of Common Stock of ISTA Pharmaceuticals, Inc. by the Underwriters pursuant to the Underwriting Agreement dated January 20, 2005 Ladies and Gentlemen: Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- We have acted as counsel for ISTA Pharmaceuticals, Inc., a Delaware corporation (the “Company”) in connection with (a) the Registration Statement on Form S-3 (Registration No. 333-114815), which was filed with the Securities and Exchange Commission (the “Commission”) on April 23, 2004, as amended by Amendment No. 1 thereto, which was filed with the Commission on May 10, 2004 (as so amended, the “Registration Statement”), and (b) the Underwriting Agreement, dated January 20, 2005 (the “Underwriting Agreement”), among the Company and Banc of America Securities LLC and Xxxxxx Xxxxxx Partners LLC.............................................................. [Underwriter] [Underwriter]........................................................................... TOTAL........................................................................ EXHIBIT , acting on their behalf and as representatives of the several underwriters named in Schedule A FORM OF LEGAL OPINION OF COMPANY COUNSELto the Underwriting Agreement (the “Underwriters”). Pursuant to the Underwriting Agreement, the Underwriters have severally agreed to purchase from the Company an aggregate of 5,500,000 shares (the “Firm Shares”) of its authorized but unissued common stock, par value $0.001 per share, and the Company has granted the Underwriters an option to purchase up to 825,000 additional shares of the Company’s common stock (the “Option Shares”). The Firm Shares and the Option Shares are collectively referred to herein as the “Shares.” The Shares have been registered with the Commission under the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations (the “Regulations”) of the Commission thereunder, pursuant to the Registration Statement. The Registration Statement was declared effective on May 18, 2004 (the “Effective Date”). The prospectus dated May 18, 2004 (hereinafter referred to as the “Base Prospectus”) and the prospectus supplement dated January , 2005 (including all materials incorporated by reference or deemed incorporated by reference therein at the date hereof), in the form filed with the Commission on January , 2005 under Rule 424(b) promulgated under the Securities Act, is hereinafter referred to as the Prospectus Supplement. The Base Prospectus and the Prospectus Supplement are sometimes collectively referred to herein as the “Prospectus.” This opinion is being delivered pursuant to Section 5.8 of the Underwriting Agreement. Unless specifically defined herein or unless the context requires otherwise, capitalized terms used herein shall have the meanings set forth in the Underwriting Agreement. In connection with the preparation of this opinion, we have examined such documents and considered such questions of law as we have deemed necessary or appropriate. We have assumed that, except for the Underwriting Agreement and the documents required or contemplated thereby, there are no other documents or agreements among the Company and the Underwriters which would expand or otherwise modify the respective rights and obligations of the Company and the Underwriters as set forth in the Underwriting Agreement and the documents required or contemplated thereby. We have assumed the authenticity of all documents submitted to us as originals, the conformity with originals of all documents submitted to us as copies, and the genuineness of all signatures. We have also assumed the legal capacity of all natural persons and that, with respect to all parties to agreements or instruments relevant hereto other than the Company, such parties had the requisite power and authority to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action, executed and delivered by such parties, and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinions, we have relied upon the representations of each party made in the Underwriting Agreement and the other documents and certificates delivered in connection therewith, certificates of officers of the Company and certificates and advices of public officials. Although we have not independently verified the accuracy of such representations and certifications, we have no current actual knowledge of any material misstatement or inaccuracy therein, and we have no reason to believe that you are not justified in relying on any opinions expressed herein based on such representations or certifications. Whenever a statement herein is qualified by “known to us,” “to our current actual knowledge,” or similar phrase, it is intended to indicate that, during the course of our representation of the Company, no information that would give us current actual knowledge of the inaccuracy of such statement has come to the attention of those attorneys in this firm who have rendered legal services in connection with the transaction described in the introductory paragraph hereof. However, except as otherwise expressly indicated, we have not undertaken any independent investigation to determine the accuracy of such statement, and any limited inquiry undertaken by us during the preparation of this opinion letter should not be regarded as such an investigation; no inference as to our knowledge of any matters bearing on the accuracy of any such statement should be drawn from the fact of our representation of the Company. Notwithstanding anything herein to the contrary, we express no opinion as to any agreement or other document between the Company and Allergan, Inc. and/or any of its affiliates and as to any such matters related thereto or arising therefrom. Based upon the foregoing, and subject to the additional assumptions, exceptions, qualifications and limitations set forth below, we are of the opinion that:
(i) 1. The Company has been is a corporation duly incorporated, is validly existing as a corporation and in good standing under the laws of the jurisdiction State of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and Delaware. The Company is duly qualified to transact do business as a foreign corporation and is in good standing in each jurisdiction other state in which the conduct nature of its business activities or of its ownership properties owned or leasing of property requires leased makes such qualificationqualification necessary, except to the extent that the failure to be so qualified or be in good standing qualify would not have a material adverse effect on the Company. The Company has the corporate power and authority to own its properties and assets, to carry on its business as described in the Prospectus and the Registration Statement, and to enter into the Underwriting Agreement and perform its obligations thereunder (including the issuance and sale of the Shares in accordance therewith).
(ii) 2. The Company has an authorized capital stock of the Company conforms as to legal matters to the description thereof contained capitalization not materially different from that which is set forth in the Prospectus.
(iii) Prospectus Supplement under the caption “Capitalization” – “Actual”. All of the presently outstanding shares of the Company’s capital stock of the Company prior to the issuance of the Shares to be sold by the Company stock, have been duly authorized and are validly issued, and are fully paidpaid and nonassessable. Except as disclosed in or contemplated by the Prospectus or the Registration Statement, nonthere are, to our current actual knowledge, (a) no outstanding subscriptions, warrants, options, calls, claims, commitments, convertible securities or other agreements or arrangements under which the Company is or may be obligated to issue shares of its capital stock, and (b) no preemptive rights, co-assessable and not subject sale rights, rights of first refusal or other rights to any preemptive subscribe for or similar rightsto purchase capital stock of the Company.
(iv) 3. The Shares to be sold by the Company have been duly authorized and, when issued and delivered paid for in accordance with the terms provisions of the Underwriting Agreement, will be validly issued, fully paid and nonnonassessable; and no preemptive rights, co-assessablesale rights, and rights of first refusal or other rights to subscribe for or to purchase capital stock of the issuance Company exist with respect to any of such Shares will not be subject to any preemptive or similar rightsthe issue and sale thereof.
(v) 4. The Underwriting Agreement has been duly authorized, authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company.
(vi) 5. The execution and delivery by of the Company of, Underwriting Agreement and the performance by the Company of its obligations under, terms (including the Underwriting Agreement issuance and sale of the Shares in accordance therewith) (a) will not contravene any provision of applicable law breach or the certificate of incorporation or by-laws result in a violation of the Company orCompany’s Certificate of Incorporation or Bylaws, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgmentjudgement, order or decree of any governmental bodydomestic court or arbitrator, agency known to us, to which the Company is a party or court having jurisdiction over is subject, or any statute, rule or regulation, known to us, to be applicable to the Company or any subsidiarycustomarily applicable to transactions of this nature, and no consent(b) will not, approvalto our current actual knowledge, authorization with or order without the giving of notice or lapse of time or both, constitute a material breach of the terms, conditions or provisions of, or qualification withconstitute a default under, any governmental body material contract, undertaking, indenture or agency is required for the performance by other agreement or instrument of the Company filed or incorporated by reference as an exhibit to the Registration Statement.
6. Except as disclosed in the Prospectus or otherwise expressly waived in writing, there are no contracts, agreements or understandings known to us between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of its obligations under this Agreement, except the Company owned or to be owned by such as may be required by person or to require the Company to include such securities in the securities or Blue Sky laws of registered pursuant to the various states in connection with the offer and sale of the SharesRegistration Statement.
(vii) 7. The statements (A) in the Base Prospectus under the captions "Business-Intellectual Property and Licensing Rights," "caption “Description of Capital Common Stock," "Shares Eligible for Future Sale" and "Underwriting" ” and (B) in the Registration Statement in Items 14 and Item 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings of the Company referred to therein, fairly present present, in all material respects, the information called for with respect to such legal matters, documents and proceedings of the Company and fairly summarize summarize, in all material respects, the matters referred to therein, in each case as such matters pertain to the Company. To our current actual knowledge, all descriptions set forth in or incorporated by reference in the Prospectus and the Registration Statement of the material contracts and documents to which the Company is a party fairly present, in all material respects, the information required under the Securities Act and the Regulations.
8. Except as disclosed in the Prospectus or the Registration Statement, there is, to our current actual knowledge, no action, suit or proceeding pending against the Company or its properties in any court or before any governmental authority or agency, or arbitration board or tribunal which, if adversely determined, could reasonably be expected to have a material adverse effect on the Company or its business or properties (taken as a whole).
9. To our current actual knowledge, there are no statutes, regulations, material contracts or other documents that are required by the Securities Act and the Regulations to be described or incorporated by reference in the Registration Statement or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described or filed or incorporated as so required.
10. The Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus Supplement, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
11. No consent, approval or authorization of, or designation, declaration or filing with, any governmental authority is required in connection with the valid execution, delivery and performance by the Company of the Underwriting Agreement (including the issuance and sale of the Shares in accordance therewith), except (a) such as have been obtained and made under the Securities Act or the Securities Exchange Act of 1934, as amended, (b) such approvals as have been obtained in connection with the approval of the listing of the Shares on the Nasdaq National Market System and (c) any consents, approvals, authorization or order of, or filing with, any state or foreign securities regulatory authority, for which we offer no opinion.
12. The Registration Statement was declared effective under the Securities Act on May 18, 2004, and the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) under the Securities Act on January , 2005; to our current actual knowledge, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated by the Commission and the conditions to the use of Form S-3 have been satisfied.
13. The Registration Statement, including the Base Prospectus, and Prospectus Supplement, as of their respective Effective Date or date thereof, (except for financial statements and schedules and other financial and statistical data included therein as to which we do not express any opinion) comply as to form in all material respects with the Securities Act and the Regulations.
14. Each document incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which we do not express any opinion) complied as to form when so filed, in all material respects, with the requirements of the Securities Act and the Exchange Act.
Appears in 1 contract
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7herein, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the indemnification and contribution provisions of Section 7 hereto herein fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreementunderstanding, kindly please sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all us four counterparts hereof, and upon the acceptance hereof by you this letter and such acceptance hereof shall become constitute a binding agreement in accordance with its termsamong each of the Underwriters and the Company. Very truly yours, Cruel World, Inc., a Delaware corporation By: --------------------------------- /s/ Xxxxxxxxxxx Xxxxxxxx Name: Xxxxxxxxxxx Xxxxxxxx Title: Chairman and Chief Executive Officer By: /s/ Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx As Attorney-in-Fact acting on behalf of each of the Selling Stockholders named in Schedule II to this Agreement Accepted as of the date hereof Xxxxxx Xxxxxx Partners at New York City, New York: By: Banc of America Securities LLC Acting severally on behalf of themselves and each of the several Underwriters named in SCHEDULE A hereto. By: /s/ Xxxxxx Xxxxxx Partners LLC By: ------------------------------------ Xxxxxxx Name: Xxxxxx Xxxxxxx Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- Managing Director Banc of America Securities LLC 0 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx00000 Facsimile: (000) 000-0000 1,280,000 192,000 BB&T Capital Markets, a Division of Xxxxx & Xxxxxxxxxxxx, Inc. 000 Xxxx Xxxx Xxxxxx Partners LLC.............................................................. [Underwriter] [Underwriter]........................................................................... TOTAL........................................................................ EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL
Xxxxxxxx, Xxxxxxxx 00000 Facsimile: (i000) The Company has been duly incorporated000-0000 1,280,000 192,000 Xxxxxx, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporationXxxxx Xxxxx, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationIncorporated 000 Xxxxx Xxxxxx Xxxxxxxxx, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company.
XX 00000 Facsimile: (ii000) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus.
000-0000 320,000 48,000 Xxxxxx X. Xxxxx & Co. 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000 XxXxxx, VA22102 Facsimile: (iii000) All of the outstanding shares of capital stock of the Company prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued000-0000 320,000 48,000 Total 3,200,000 480,000 FR54, fully paidLLC 95,250 185,500 Xxxxxxx X. Xxxxxx 245,250 144,250 Bragol 2004 Exempt Trust 400,000 150,250 Xxxxx Xxxxx 100,000 — 1. Xxxxxxxx Acquisitions, non-assessable and not subject to any preemptive or similar rights.
(iv) The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(v) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(vi) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(vii) The statements (A) in the Prospectus under the captions "Business-Intellectual Property and Licensing Rights," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" and (B) in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.L.C. Virginia
Appears in 1 contract
Samples: Underwriting Agreement (Comstock Homebuilding Companies, Inc.)
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 78, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, Cruel WorldIMPAC Medical Systems, Inc., a Delaware corporation Inc. By: --------------------------------- Name: Jxxxxx X. Xxxxxxxxxxx Title: President and Chief Executive Officer The Firm Selling Stockholders named in Schedules B-1 hereto, acting severally By: Attorney-in-Fact The Option Selling Stockholders named in Schedules B-2 hereto, acting severally By: Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx Txxxxx Wxxxxx Partners LLC U.S. Bancorp Pxxxx Xxxxxxx Wxxxxxx Xxxxx & Company, L.L.C. Acting severally on behalf of themselves and the several Underwriters named in SCHEDULE Schedule A hereto. By: Xxxxxx Xxxxxx Txxxxx Wxxxxx Partners LLC By: ------------------------------------ Name: Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- Xxxxxx Xxxxxx Txxxxx Wxxxxx Partners LLC.............................................................. [Underwriter] [Underwriter]........................................................................... TOTAL........................................................................ EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSELLLC U.S. Bancorp Pxxxx Xxxxxxx Wxxxxxx Xxxxx & Company, L.L.C. Summit Ventures IV, L.P. 570,000 Summit Investors III, L.P. 30,000 Dxxxx X. Xxxxxxxx 458,500 Dxxxx X. Xxxxxxxx 300,000 Jxxxx X. Xxxx 300,000 Jxxxxx X. Xxxxxxxxxxx 200,000 Rxxxxx X. Xxxx 100,000 Total 1,958,500 Summit Ventures IV, L.P. 94,231 Summit Ventures III, L.P. 4,960 Dxxxx X. Xxxxxxxx 75,798 Dxxxx X. Xxxxxxxx 49,595 Jxxxx X. Xxxx 49,595 Jxxxxx X. Xxxxxxxxxxx 33,064 Rxxxxx X. Xxxx 16,532 Total 323,775
(i) i. The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction State of its incorporationDelaware, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the CompanyCompany and its subsidiaries, taken as a whole.
(ii) The authorized capital stock . IMPAC Global Systems, Inc. has been duly incorporated, is validly existing as a corporation in good standing under the laws of the Company conforms State of Delaware, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to legal matters transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the description thereof contained extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the ProspectusCompany and its subsidiaries, taken as a whole.
(iii) . All of the outstanding issued shares of capital stock of IMPAC Global Systems, Inc. have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company Company.
iv. The shares of Common Stock outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid, paid and non-assessable and not subject to any preemptive or similar rightsassessable.
(iv) v. The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and and, to such counsel’s knowledge, the issuance of such Shares will not be subject to any preemptive or similar rights.
(v) vi. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(vi) vii. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's ’s knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material that has been filed as an exhibit to the Company and its subsidiaries, taken as a wholeRegistration Statement, or, to the best of such counsel's ’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as (a) have been obtained under the Securities Act, (b) may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesShares or (c) may be required by the NASD, in each case as to which such counsel need express no opinion.
(vii) viii. The statements (A) in the Prospectus under the captions "Business-Intellectual Property and Licensing Rights“Management—Stock Plans," "” “Management—Indemnification,” “Description of Capital Stock," "Shares Eligible for Future Sale" ” and "“Underwriting" ” and (B) in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.
ix. To such counsel’s knowledge, there are no (A) legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described, or (B) any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required (except as to regulatory matters as to which such counsel need not express any opinion).
x. The Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
xi. The Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder. In connection with the preparation of the Registration Statement and the Prospectus, such counsel has participated in conferences with officers and other representatives of the Company and with its certified public accountants, as well as with representatives of the Underwriters and their counsel. At such conferences, the contents of the Registration Statement and the Prospectus and related matters were discussed. Such counsel has not independently verified and accordingly is not confirming and assumes no responsibility for the accuracy or completeness of the statements contained in the Registration Statement or the Prospectus. On the basis of the foregoing, nothing has come to such counsel’s attention that has caused such counsel to believe (i) that the Registration Statement (except as to the financial statements and schedules, related notes and other financial data and statistical data derived therefrom, as to which counsel need not express any belief) at the Effective Date 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, or (ii) that the Prospectus (except as to the financial statements and schedules, related notes and other financial data and statistical data derived therefrom, as to which counsel need not express any belief) as of its date or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary, in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yoursORASURE TECHNOLOGIES, Cruel World, Inc., a Delaware corporation INC. By: --------------------------------- /s/ XXXXXX X. XXXXX Name: Xxxxxx X. Xxxxx Title: Chief Financial Officer Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC XX Xxxxx Securities Corporation Xxxxx Fargo Securities, LLC Acting severally on behalf of themselves and the several Underwriters named in SCHEDULE Schedule A hereto. By: Xxxxxx Xxxxxx Partners LLC By: ------------------------------------ /s/ XXXXXX XXXXXXX, III Name: Xxxxxx Xxxxxxx, III Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- Principal Xxxxxx Xxxxxx Partners LLC.............................................................. [Underwriter] [Underwriter]........................................................................... TOTAL........................................................................ EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL
(i) The Company has been duly incorporatedLLC 1,900,000 XX Xxxxx Securities Corporation 1,425,000 Xxxxx Fargo Securities, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporationLLC 1,425,000 Xx Xxxxx Securities, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company.
(ii) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus.
(iii) All of the outstanding shares of capital stock of the Company prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid, non-assessable and not subject to any preemptive or similar rights.
(iv) The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(v) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(vi) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(vii) The statements (A) in the Prospectus under the captions "Business-Intellectual Property and Licensing Rights," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" and (B) in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.Incorporated 250,000 Total 5,000,000
Appears in 1 contract
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7herein, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the indemnification and contribution provisions of Section 7 hereto herein fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreementunderstanding, kindly please sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all us four counterparts hereof, and upon the acceptance hereof by you this letter and such acceptance hereof shall become constitute a binding agreement in accordance with its termsamong each of the Underwriters and the Company. Very truly yours, Cruel WorldXXXXXXXX HOMEBUILDING COMPANIES, Inc., a Delaware corporation INC. By: --------------------------------- Name: Title: Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Acting severally at Richmond, Virginia: BB&T CAPITAL MARKETS, A Division of Xxxxx & Xxxxxxxxxxxx, Inc., By: BB&T CAPITAL MARKETS, a Division of Xxxxx & Xxxxxxxxxxxx, Inc., on behalf of themselves and each of the several Underwriters named in SCHEDULE A hereto. By: Xxxxxx Xxxxxx Partners LLC By: ------------------------------------ Name: Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- [Others] BB&T Capital Markets, a Division of Xxxxx & Xxxxxxxxxxxx, Inc. 000 Xxxx Xxxx Xxxxxx Xxxxxx Partners LLC.............................................................. [Underwriter] [Underwriter]........................................................................... TOTAL........................................................................ EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSELXxxxxxxx, Xxxxxxxx 00000 Facsimile: (000) 000-0000 Total
(i) The Company has and each of the Subsidiaries have been duly incorporated, is in the case of a corporation, and duly organized, in the case of a limited liability company, and are validly existing as a corporation corporations and limited liability companies, as the case may be, in good standing under the laws of the jurisdiction their respective jurisdictions of its incorporationincorporation or organization, has the with corporate or limited liability company power and authority to own its property or lease their respective properties and to conduct its business their respective businesses as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company.Prospectus;
(ii) The authorized capital stock Company and each of the Company conforms Subsidiaries have been duly qualified as foreign corporations or limited liability companies for the transaction of business and are in good standing under the laws of each other jurisdiction in which they own or lease properties, or conduct any business, so as to legal matters require such qualification, except where the failure to the description thereof contained so qualify will not result in the Prospectus.a Material Adverse Effect (such opinion may be based solely upon certificates of authority or qualification issued in such jurisdictions to such effect);
(iii) All The Company has an authorized capitalization as set forth in the Prospectus, including as set forth under the caption "Capitalization"; and all of the outstanding issued shares of capital stock of the Company prior have been duly and validly authorized and issued, are fully paid and nonassessable and conform to the issuance description of the capital stock of the Company contained in the Prospectus, including as set forth under the caption "Capitalization"; there are no preemptive or other similar rights to subscribe for or to purchase any securities of the Company or any securities convertible or exchangeable into securities of the Company; except as described in the Prospectus, to such counsel's knowledge there are no warrants or options or similar rights to purchase any securities of the Company or any securities convertible or exchangeable into securities of the Company; neither the filing of the Registration Statement nor the offering or sale of the Shares to be sold as contemplated by the Company have been duly authorized and are validly issued, fully paid, non-assessable and not subject Underwriting Agreement gives rise to any preemptive rights for or similar rightsrelating to the registration of any securities of the Company or any securities convertible or exchangeable into securities of the Company; with respect to such filing, offering or sale; and the form of the certificates evidencing the Shares complies with all formal requirements of Delaware law; all issued and outstanding shares of capital stock and other securities of the Company were issued in compliance with all federal and state securities laws.
(iv) The Shares to be sold by All of the Company issued and outstanding shares of capital stock or membership interests of each of the Subsidiaries have been duly and validly authorized and issued and are fully paid and nonassessable; and all outstanding shares of capital stock or membership interests of each of the Subsidiaries are directly (or indirectly through other wholly owned Subsidiaries) owned by the Company, free and clear of all security interests, claims, equities, liens or encumbrances; all issued and outstanding shares of capital stock or membership interests of each of the Subsidiaries were issued in compliance will all federal and state securities laws.
(v) The Shares have been duly and validly authorized and, when issued and delivered against payment therefor as provided in accordance with the terms of the Underwriting Agreement, the Shares being issued as of such Time of Delivery will be duly and validly issued, issued and fully paid and non-assessable, nonassessable and will conform to the issuance description of such the Shares will not be subject to any preemptive contained in the Prospectus as amended or similar rights.
(v) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.supplemented;
(vi) To such counsel's knowledge after due inquiry, there are no legal or governmental proceedings pending to which the Company or any of the Subsidiaries is a party or of which any property of the Company or any of the Subsidiaries is the subject, which, if determined adversely to the Company or any of the Subsidiaries, would individually or in the aggregate to have a Material Adverse Effect and to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or by others; further to such counsel's knowledge after due inquiry, (a) each of the Company and the Subsidiaries has all material licenses, authorizations, consents and approvals and has made all material filings required under any federal, state or local law, regulation or rule, required to conduct their respective businesses, and (b) is not in violation of, in default under, and has not received any written notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval, except as described in the Prospectus or except where the failure to acquire the same or the violation or default thereunder would not reasonably likely result in a Material Adverse Effect;
(vii) The execution issue and delivery sale of the Shares by the Company of, and the performance of the Underwriting Agreement and the Merger Agreements and the consummation by the Company of its obligations the other transactions therein contemplated will not conflict with or result in a breach or violation of any terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Underwriting Agreement Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound or to which any of the property or assets of the Company or any of the Subsidiaries is subject that is filed as an exhibit to the Registration Statement, that is identified or referenced in the Registration Statement or that is otherwise known to us after due inquiry, nor will not contravene such action result in any provision violation of applicable law the provisions of the Charter or the certificate of incorporation or byBy-laws of the Company oror the Articles of Incorporation, to Articles of Organization, bylaws or operating agreements of any of the best of such counsel's knowledgeSubsidiaries, any agreement or other instrument binding upon as the Company case may be, or any of its subsidiaries that is material to the Company and its subsidiariesstatute or any order, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order rule or decree regulation of any court or governmental body, agency or court body having jurisdiction over the Company or any subsidiaryof the Subsidiaries or any of their properties; except as disclosed in the Prospectus, and nor will such action result in the creation or imposition of any material lien, charge, claim or encumbrance upon any material property or assets of the Company or its Subsidiaries; no Subsidiary is prohibited or restricted by its charter, bylaws, articles of organization or operating agreement, as the case may be, or agreements or instruments to which it is a party, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary's capital stock or interests or from paying the Company or any other Subsidiary, any amounts due under loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary's property or assets to the Company or to any other Subsidiary;
(viii) No consent, approval, authorization or order ofauthorization, order, registration or qualification with, of or with any such court or governmental agency or body or agency is required for the performance issue and sale of the Shares or the consummation by the Company of its obligations the transactions contemplated by the Underwriting Agreement or the Merger Agreements, except the registration under this the Act of the Shares, inclusion of the Shares in the Nasdaq National Market, approval of the NASD, filing of certificates of merger with the State Corporation Commission of the Commonwealth of Virginia in connection with the First Second Merger Agreements, filing of a certificate of merger with the Delaware Secretary of State in connection with the Second Merger Agreement, except and such consents, approvals, authorizations, registrations or qualifications as may be required by the under state securities or Blue Sky laws of the various states in connection with the offer purchase and sale distribution of the Shares.Shares by the Underwriters;
(viiix) The statements (A) Registration Statement has become effective under the Act and, to our knowledge after making telephone inquiries to staff members of the Commission, no stop order proceedings with respect thereto are pending or threatened under the Act, and any required filing of the Prospectus and any supplement thereto pursuant to Rule 424 under the Act has been made in the Prospectus manner and within the time period required by such Rule 424 and in the manner and within the time period required by Rule 430A under the captions "Business-Intellectual Property and Licensing Rights," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" and (B) in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.Act;
Appears in 1 contract
Samples: Underwriting Agreement (Comstock Homebuilding Companies, Inc.)
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 78, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, Cruel WorldXxxxx'x Restaurants, Inc., a Delaware corporation Inc. By: --------------------------------- ---------------------------------- Name: Title: The Selling Stockholders named in Schedule B hereto, acting severally By: ---------------------------------- Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Xxxxxxx U.S. Bancorp Xxxxx Xxxxxxx, Inc. Acting severally on behalf of themselves and the several Underwriters named in SCHEDULE Schedule A hereto. By: Xxxxxx Xxxxxx Partners LLC By: ------------------------------------ ---------------------------------- Name: Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED Number of Firm Shares Underwriter To Be Purchased ----------- --------------- Xxxxxx Xxxxxx Partners LLC.............................................................. LLC Xxxx Xxxxxxxx Xxxxxxx U.S. Bancorp Xxxxx Xxxxxxx, Inc. [Underwriter] [UnderwriterNAMES OF OTHER UNDERWRITERS]........................................................................... TOTAL........................................................................ EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company.
(ii) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus.
(iii) All of the outstanding shares of capital stock of the Company prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid, non-assessable and not subject to any preemptive or similar rights.
(iv) The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(v) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(vi) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(vii) The statements (A) in the Prospectus under the captions "Business-Intellectual Property and Licensing Rights," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" and (B) in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.
Appears in 1 contract
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus prospectus, the Basic Prospectus, the Prospectus Supplement and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, Cruel WorldISTA PHARMACEUTICALS, INC. By: Name: Title: Accepted as of the date hereof Banc of America Securities LLC By: Name: Title: Txxxxx Wxxxxx Partners LLC By: Name: Title: Lazard Frères & Co. LLC By: Name: Title: C.X. Xxxxxxxxx, Towbin LLC By: Name: Title: ISTA Pharmaceuticals, Inc. 10000 Xxxxx Xxxxxxx, Suite 100 Irvine, CA 92618 Ladies and Gentlemen: The undersigned, (the “Investor”), hereby confirms its agreement with you as follows:
1. This Purchase Agreement (the “Agreement”) is made as of August 5, 2004 between ISTA Pharmaceuticals, Inc., a Delaware corporation By: --------------------------------- Accepted as (the “Company”), and the Investor.
2. As of the date hereof Xxxxxx Xxxxxx Partners LLC Acting severally on behalf of themselves Closing (as defined below) and subject to the terms and conditions hereof, the Company and the several Underwriters named Investor agree that the Investor will purchase from the Company and the Company will issue and sell to the Investor shares of common stock (the “Shares”) of the Company, for a purchase price of $8.50 per share, or an aggregate purchase price of $ . The Investor acknowledges that the offering of the Shares is not a firm commitment underwriting.
3. The completion of the purchase and sale of the Shares shall occur at a closing (the “Closing”) which is expected to occur on or about August 11, 2004. After the execution of this Agreement by the Investor, the Investor shall remit to the Company by wire transfer to the account designated by the Company in SCHEDULE A heretothis Agreement the amount of funds equal to the aggregate purchase price of the Shares. By: Xxxxxx Xxxxxx Partners LLC By: ------------------------------------ Name: Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- Xxxxxx Xxxxxx Unless otherwise requested by the Investor and agreed to by the Company, the Shares purchased by the Investor will be delivered by electronic book-entry at The Depository Trust Company (“DTC”), registered in the Investor’s name and address as set forth below, and will be released by U.S. Stock Transfer Corporation, the Company’s transfer agent (the “Transfer Agent”), to the Investor at the Closing. After the execution of this Agreement by the Investor, the Investor shall direct the broker-dealer at which the account or accounts to be credited with the Shares are maintained to set up a deposit/withdrawal at custodian (“DWAC”) instructing the Transfer Agent to credit such account or accounts with the Shares.
4. The offering and sale of the Shares are being made pursuant to the Registration Statement and Prospectus (as such terms are defined below). The Investor acknowledges that the Company intends to enter into subscription agreements in substantially the same form as this Agreement with certain other investors and intends to offer and sell (“Offering”) up to 2,500,000 shares of its common stock pursuant to the Registration Statement and Prospectus. In the event the Company does not receive funds from investors for the purchase of at least 1,250,000 shares of common stock of the Company (the “Minimum Shares”), the Offering will terminate and any funds received by the Company will be returned promptly to such investors (including any funds received from Investor intended for its purchase of the Shares). In the event the Offering terminates for the above reason (or for any other reason), this Agreement shall automatically terminate without notice and without liability to any party.
5. The Company shall deliver to the Investor and file with the Securities and Exchange Commission (the “Commission”) a prospectus and prospectus supplement (collectively the “Prospectus”) with respect to the Registration Statement reflecting the offering of the Shares in conformity with the Securities Act (as defined below), including Rule 424(b) thereunder. The Investor agrees that such Prospectus may be delivered to it in electronic form.
6. The Company intends to enter into a Placement Agency Agreement (the “Placement Agency Agreement”) with Banc of America Securities LLC, Txxxxx Wxxxxx Partners LLC.............................................................. [Underwriter] [Underwriter]........................................................................... TOTAL........................................................................ EXHIBIT , Lazard Frères & Co. LLC and C.X. Xxxxxxxxx, Towbin LLC who will act as placement agents with respect to the Offering and receive a fee in connection with the sale of the Shares. A FORM OF LEGAL OPINION OF COMPANY COUNSELcopy of the Placement Agency Agreement is available upon request. In the event the Placement Agency Agreement is terminated on or prior to the Closing, the Company shall have the right immediately upon written notice to Investor to terminate this Agreement without liability to Investor. In such event, the Company shall promptly return any funds received from the Investor intended for its purchase of the Shares.
7. The Company hereby makes the following representations, warranties and covenants to the Investor:
(ia) The Each of the Company has been and the Subsidiaries (as defined below) is an entity duly incorporatedincorporated or otherwise organized, is validly existing as a corporation and in good standing under the laws of the jurisdiction of its incorporationincorporation or organization (as applicable), has with the corporate requisite power and authority to own and use its property properties and assets and to conduct carry on its business as described currently conducted. Neither the Company nor any Subsidiary is in violation of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents, except where such violation would not, individually or in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationaggregate, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company.
(ii) The authorized capital stock business, properties, financial condition or results of operations of the Company conforms as to legal matters to the description thereof contained in the Prospectus.
(iii) All of the outstanding shares of capital stock of the Company prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid, non-assessable and not subject to any preemptive or similar rights.
(iv) The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(v) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(vi) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiariesSubsidiaries, taken as a whole, or, from that set forth in the Registration Statement and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the best date of such counsel's knowledge, any judgment, order this Agreement) or decree of any governmental body, agency or court having jurisdiction over materially impair the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of Company’s ability to perform its obligations under this Agreement (a “Material Adverse Effect”). For purposes of this Agreement, except such as may be required by (i) “Subsidiary” means any Person organized in the securities United States in which the Company directly or Blue Sky laws indirectly owns 50% or more of the various states in connection with the offer and sale capital stock or holds 50% or more of the Shares.
(vii) The statements (A) in the Prospectus under the captions "Business-Intellectual Property and Licensing Rights," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" equity or similar interest and (Bii) in the Registration Statement in Items 14 and 15“Person” means an individual or corporation, in each case insofar as such statements constitute summaries partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to thereinany kind.
Appears in 1 contract
Samples: Placement Agency Agreement (Ista Pharmaceuticals Inc)
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 78, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. [Remainder of page intentionally left blank] If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, Cruel World, Inc., a Delaware corporation TOTAL ENTERTAINMENT RESTAURANT CORP. By: --------------------------------- Name: ------------------------------- Title: ------------------------------ The Selling Stockholders named in Schedule B hereto, acting severally By: -------------------------------- Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx hereof: Thomas Weisel Partners LLC [NAME OF OTHER REPRESENTATIVE] Acting severally on behalf sevexxxxx ox xxxxlf of themselves and the several Underwriters named in SCHEDULE Schedule A hereto. By: Xxxxxx Xxxxxx Thomas Weisel Partners LLC By: ------------------------------------ Name--------------------------------- Xxxx: ------------------------------- Title: ------------------------------ SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED Number of Firm Shares Underwriter To Be Purchased ----------- --------------- Xxxxxx Xxxxxx Thomas Weisel Partners LLC.............................................................. LLC [UnderwriterNAME OF OTHER REPRESENTATIVE] [Underwriter]........................................................................... TOTAL........................................................................ NAME OF OTHXX XXXEXXXXXXRS] --------- Total 2,000,000 SCHEDULE B Number of Firm Shares Selling Stockholder To Be Sold ------------------- -------------- Dennis Thompson 180,000 Thxxxxxx Xxxxxx, LLC 20,000 Stxxxxx Xxrtnett 75,000 Orxxxxxxx Xxxxxxx II, Ltd. 100,000 Thomas Hagar 150,000 C. Xxxxx Xxxx, III 25,000 ------- Total 550,000 ======= EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the state of Delaware, has the corporate power and authority to own and lease its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(ii) Each subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the CompanyCompany and its subsidiaries, taken as a whole.
(iiiii) All of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims.
(iv) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus.
(iiiv) All of the outstanding The shares of capital stock of Common Stock (including the Company Shares to be sold by the Selling Stockholders) outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid, paid and non-assessable and not subject to any preemptive or similar rightsassessable.
(ivvi) The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(vvii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(viviii) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(viiix) The statements (A) in the Prospectus under the captions "Business-Intellectual Property and Licensing Rights," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" and (B) in the Registration Statement in Items 14 and Item 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.
(x) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described or incorporated by reference in the Registration Statement or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described or filed or incorporated as required.
(xi) The Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as such term is defined in the Investment Company Act of 1940, as amended.
(xii) Each document filed by the Company pursuant to the Exchange Act of 1934, as amended (the "EXCHANGE ACT"), (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) and incorporated or deemed to be incorporated by reference in the Prospectus complied when so filed as to form in all material respects with the Exchange Act and such counsel has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents where filed, not misleading. Such counsel shall also state that (A) the Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any view) comply as to form in all material respects with the Securities Act of 1933, as amended, and the applicable rules and regulations of the Securities and Exchange Commission thereunder, (B) no facts have come to the attention of such counsel that would cause such counsel to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Registration Statement therein at the time the Registration Statement became effective 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 not misleading and (C) no facts have come to the attention of such counsel that would cause such counsel to believe that (except for financial statements and schedules and other financial and statistical data as to which such counsel need not express any belief) the Prospectus contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. With respect to such statement, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. EXHIBIT B FORM OF LEGAL OPINION OF SELLING STOCKHOLDERS COUNSEL
(i) The Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of each of the Selling Stockholders.
(ii) The execution and delivery by each Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, the Underwriting Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder will not contravene any provision of applicable law, or the [articles/certificate] of incorporation or by-laws of such Selling Stockholder (if such Selling Stockholder is a corporation), or, to such counsel's knowledge, any agreement or other instrument binding upon such Selling Stockholder or, to such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under the Underwriting Agreement or the Power of Attorney and Custody Agreement of such Selling Stockholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with offer and sale of the Shares.
(iii) Each of the Selling Stockholders has valid title to the Shares to be sold by such Selling Stockholder and the legal right and power, and all authorization and approval required by law, to enter into the Underwriting Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder.
(iv) The Power of Attorney and Custody Agreement of each Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder.
(v) Delivery of the Shares to be sold by each Selling Stockholder pursuant to this Agreement will pass title to such Shares free and clear of any security interests, claims, liens, equities and other encumbrances.
Appears in 1 contract
Samples: Underwriting Agreement (Total Entertainment Restaurant Corp)
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus prospectus, the Basic Prospectus, the Prospectus Supplement and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, Cruel WorldDEPOMED, Inc., a Delaware corporation By: --------------------------------- Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Acting severally on behalf of themselves and the several Underwriters named in SCHEDULE A heretoINC. By: /s/ Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx Title: VP & CFO Xxxxxx Xxxxxx Partners LLC By: ------------------------------------ /s/ Xxx Xxxxx Name: Xxx Xxxxx Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- Partner Xxxx X. Xxxx, Ph.D. Xxxx Xxxxxx, Ph.D. Xxxx X. Xxxxxxxx Xxxx X. Shell G. Xxxxxx Xxxxxxx Xxxxxx X. Xxxxxx Xxxxx X. Xxxxx, M.D. Xxxxx X. Staple Xxxxxx X. Xxxxx Xxxx X. Xxxxx [ ] Ladies and Gentlemen: The undersigned, (the “Investor”), hereby confirms its agreement with you as follows:
1. This Purchase Agreement (the “Agreement”) is made as of January , 2005 between Depomed, Inc., a California corporation (the “Company”), and the Investor.
2. As of the Closing (as defined below) and subject to the terms and conditions hereof, the Company and the Investor agree that the Investor will purchase from the Company and the Company will issue and sell to the Investor shares of common stock, no par value (the “Shares”), of the Company, for a purchase price of $4.50 per share, or an aggregate purchase price of $ . The Investor acknowledges that, to its knowledge the offering of the Shares is not a firm commitment underwriting.
3. The completion of the purchase and sale of the Shares shall occur at a closing (the “Closing”) which is expected to occur at or about 10:00 a.m., New York City time, on January 12, 2005 (unless another time or date shall be agreed upon by the Company, Xxxxxx Xxxxxx Partners LLC.............................................................. [Underwriter] [Underwriter]........................................................................... TOTAL........................................................................ EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSELLLC (the “Placement Agent”) and the Investor). Upon the execution of this Agreement by the Investor, the Investor shall remit to the Company by wire transfer to the trust account (the “Segregated Account”) designated by the Company (such account having been established and segregated for the Company and maintained and administered by Xxxxxx Xxxxxx White & XxXxxxxxx LLP, counsel to the Company, which funds shall be held in the account for all investors that deposit funds therein, pending the Closing pursuant to the terms of the Placement Agency Agreement (defined below)) the amount of funds equal to the aggregate purchase price of the Shares. Unless otherwise requested by the Investor and agreed to by the Company, the Shares purchased by the Investor will be delivered by electronic book-entry at The Depository Trust Company (“DTC”), registered in the Investor’s name and address as set forth below, and will be released by Continental Stock Transfer and Trust Company, the Company’s transfer agent (the “Transfer Agent”), to the Investor at the Closing. After the execution of this Agreement by the Investor, the Investor shall direct the broker-dealer at which the account or accounts to be credited with the Shares are maintained to set up a deposit/withdrawal at custodian (“DWAC”) instructing the Transfer Agent to credit such account or accounts with the Shares. The Shares shall be free of restrictive legends.
4. The offering and sale of the Shares are being made pursuant to the Registration Statement and the Prospectus (ias such terms are defined below). The Investor acknowledges that the Company intends to enter into subscription agreements in substantially the same form of this Agreement (and at a price per share no less than the price per share to be paid by the Investor pursuant to this Agreement) with certain other investors and intends to offer and sell (the “Offering”) up to 5,036,000 shares of its common stock pursuant to the Registration Statement and the Prospectus. If funds sufficient for the sale of an aggregate of at least 2,222,223 shares of the common stock of the Company (the “Minimum Shares”) being offered in the Offering are not received from investors into the Segregated Account by 5:00 p.m., New York City time, on January 11, 2005, the Offering shall be automatically terminated, in which event all funds paid by investors into the Segregated Account (including funds paid by the Investor with respect to the Shares), shall be promptly (and, in any event, within one business day) returned to such investors, without interest, in accordance with the amounts each such investor paid into the Segregated Account. If funds sufficient for the sale of the Minimum Shares are received into the Segregated Account by 5:00 p.m., New York City time, on January 11, 2005, then at the Closing and upon joint instruction from the Company and the Placement Agent all funds received into the Segregated Account will be distributed to the Company and the Placement Agent, as applicable, and the Shares will be delivered as set forth herein. In the event the Offering terminates for any reason, this Agreement shall automatically terminate without notice and without liability to any party, in which event any funds received from the Investor intended for its purchase of Shares shall be promptly (and, in any event, within one business day) returned without interest.
5. The Company has been delivered to the Investor and shall file with the Securities and Exchange Commission (the “Commission”) a prospectus and prospectus supplement (collectively the “Prospectus”) with respect to the Registration Statement reflecting the offering of the Shares in conformity with the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the “Act”), including Rule 424(b) thereunder. The Investor agrees that such Prospectus may be delivered to it in electronic form.
6. The Company has entered into a Placement Agency Agreement (the “Placement Agency Agreement”) with the Placement Agent, who will act as the Company’s exclusive placement agent with respect to the Offering and receive a fee in connection with the sale of the Shares. The Placement Agency Agreement will be included as an exhibit to a Current Report on Form 8-K that the Company will file with the Securities and Exchange Commission prior to the Closing and that will be incorporated by reference into the Registration Statement. In the event the Placement Agency Agreement is terminated on or prior to the Closing, the Company shall have the right immediately upon written notice to Investor to terminate this Agreement without liability to the Investor. In such event, the Company shall promptly and, in any event within one business day, return, without interest, any funds received from the Investor intended for its purchase of the Shares.
7. The Company hereby makes the following representations, warranties and covenants to the Investor:
(a) Each of the Company and the Subsidiaries (as defined below) is an entity duly incorporatedincorporated or otherwise organized, is validly existing as a corporation and in good standing under the laws of the jurisdiction of its incorporationincorporation or organization (as applicable), has with the corporate requisite power and authority to own and use its property properties and assets and to conduct carry on its business as described currently conducted. Neither the Company nor any Subsidiary is in violation of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents, except where such violation would not, individually or in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationaggregate, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company.
(ii) The authorized capital stock business, properties, financial condition or results of operations of the Company conforms as to legal matters to the description thereof contained in the Prospectus.
(iii) All of the outstanding shares of capital stock of the Company prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid, non-assessable and not subject to any preemptive or similar rights.
(iv) The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(v) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(vi) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiariesSubsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(vii) The statements (A) in the Prospectus under the captions "Business-Intellectual Property and Licensing Rights," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" and (B) from that set forth in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries the Prospectus (exclusive of any amendments or supplements thereto subsequent to the legal matters, documents Closing date) or proceedings referred materially impair the Company’s ability to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.perform its
Appears in 1 contract
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 78, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. [Remainder of page intentionally left blank] If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, Cruel WorldVOCUS, Inc., a Delaware corporation INC. By: --------------------------------- Name: Rxxxxxx Xxxxxx Title: Chief Executive Officer and President The Selling Stockholders named in Schedule B hereto, acting severally By: Attorney-in-Fact The Selling Stockholders named in Schedule C hereto, acting severally By: Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx Txxxxx Wxxxxx Partners LLC RBC Capital Markets Corporation Wachovia Capital Markets, LLC Wxxxxxx Xxxxx & Company, L.L.C. Canaccord Axxxx Inc. Pacific Crest Securities Inc. Acting severally on behalf of themselves and the several Underwriters named in SCHEDULE Schedule A hereto. By: Xxxxxx Xxxxxx Txxxxx Wxxxxx Partners LLC By: ------------------------------------ Name: Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- Xxxxxx Xxxxxx Txxxxx Wxxxxx Partners LLC.............................................................. [Underwriter] [Underwriter]........................................................................... TOTAL........................................................................ EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL
(i) The Company has been duly incorporatedLLC RBC Capital Markets Corporation Wachovia Capital Markets, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporationLLC Wxxxxxx Xxxxx & Company, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company.
(ii) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus.
(iii) All of the outstanding shares of capital stock of the Company prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid, non-assessable and not subject to any preemptive or similar rights.
(iv) The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(v) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(vi) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(vii) The statements (A) in the Prospectus under the captions "Business-Intellectual Property and Licensing Rights," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" and (B) in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.L.L.C. Canaccord Axxxx Inc. Pacific Crest Securities Inc. Total
Appears in 1 contract
Samples: Underwriting Agreement (Vocus, Inc.)
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 78, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, Cruel WorldCACHE, Inc., a Delaware corporation INC. By: --------------------------------- Name: Title: The Selling Shareholders named in Schedule B hereto, acting severally By: Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx Partners XXXXXX XXXXXX PARTNERS LLC US BANCORP XXXXX XXXXXXX INC. XXXXX XXXXXX & CO., INC. FIRST ALBANY CAPITAL INC. Acting severally on behalf of themselves and the several Underwriters named in SCHEDULE Schedule A hereto. By: Xxxxxx Xxxxxx Partners LLC By: ------------------------------------ Name: Title: XXXXXX XXXXXX PARTNERS LLC 23 SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- Xxxxxx Xxxxxx Partners LLC.............................................................. LLC US Bancorp Xxxxx Xxxxxxx Inc. Xxxxx Xxxxxx & Co., Inc. First Albany Capital Inc. Total 2,000,000 Xxxxxx X. Xxxx* 869,812 [UnderwriterCharitable Organization*] [Underwriter]........................................................................... TOTAL........................................................................ 150,000 85 J Xxxx Trust* 302,594 85 K Xxxx Trust* 302,594 Xxxx Xxxx Xxxxxx* 175,000 Xxxxx Xxxx* 80,000 Xxxxxx X. Xxxxxxxxx* 100,000 Xxxxx Xxxxx* 120,000 * "Principal Shareholder." EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSELA-1
1. Based solely on such counsel's review of good standing certificates issued by the relevant states, the Company is duly qualified to transact business as a foreign corporation in each of the states listed on Schedule I attached to such opinion.
2. Based solely on such counsel's review of a good standing certificate issued by the secretary of state of the State of Nevada, Cache of Nevada, Inc. (ithe "Subsidiary") The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction State of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires Nevada. Based solely on such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company.
(ii) The authorized capital stock counsel's review of the Company conforms as to legal matters to stock ledger of the description thereof contained in the Prospectus.
(iii) All Subsidiary, all of the outstanding shares of capital stock the Subsidiary are owned directly by the Company. To such counsel's knowledge, such shares are held free and clear of the Company prior all liens, encumbrances or other third party claims. The Subsidiary is not qualified to the issuance of the Shares to be sold do business as a foreign corporation in any state.
3. The Underwriting Agreement has been duly executed and delivered by the Company have been duly authorized and are validly issued, fully paid, non-assessable and not subject to any preemptive by or similar rights.
(iv) The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms on behalf of each of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and Selling Shareholders listed on Schedule II attached to such opinion (the issuance of such Shares will not be subject to any preemptive or similar rights.
(v) "Individual Shareholders"). The Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of each of the CompanySelling Shareholders listed on Schedule III attached to such opinion (the "Entity Shareholders").
(vi) 4. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene (a) any provision of applicable law or the certificate of incorporation or by-laws of the Company orwhich, to the best of in such counsel's knowledgeexperience, is normally applicable to transactions of the type contemplated by the Underwriting Agreement, (b) any agreement or other instrument binding upon the Company or any of its subsidiaries that is material filed as an exhibit to the Company and its subsidiaries, taken as a whole, or, Registration Statement (including exhibits incorporated by reference) or (c) to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiaryof its subsidiaries.
5. Except as have been obtained, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency which, in such counsel's experience, is normally applicable to transactions of the type contemplated by the Underwriting Agreement is required for the performance by the Company of its obligations under this Agreementthereunder, except such as may be required by the state securities or Blue Sky laws blue sky laws, as to which such counsel expresses no opinion.
6. The execution and delivery by each Selling Shareholder of, and the performance by each Selling Shareholder of its obligations under, the various states Transaction Documents will not contravene (a) any provision of applicable law which, in such counsel's experience, is normally applicable to selling shareholders generally in connection with the offer and sale transactions of the Sharestype contemplated by the Underwriting Agreement, (b) the Articles or Certificate of Incorporation or by-laws of any Selling Shareholder that is a corporation, (c) to such counsel's knowledge, any trust, partnership, limited liability company or other agreement or other instruments binding upon such Selling Shareholder or (d) to such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder. To such counsel's knowledge, no consent, approval, authorization or order of, or qualification with, any governmental body or agency which, in such counsel's experience, is normally applicable to selling shareholders generally in connection with transactions of the type contemplated by the Underwriting Agreement is required for the performance by any Selling Shareholder of his, her or its obligations under the Transaction Documents, except such as may be required by state securities or blue sky laws, as to which such counsel need not express any opinion.
7. To such counsel's knowledge, (viia) each of the Selling Shareholders is the legal and beneficial owner of the Shares to be sold by such Selling Shareholder and (b) all authorizations and approvals required by (i) any law which, in such counsel's experience, is normally applicable to selling shareholders generally in connection with transactions of the type contemplated by the Underwriting Agreement, or (ii) any Entity Shareholder's charter or bylaws, partnership or limited liability company agreement, trust agreement or other organizational documents, in each case, to enter into the Transaction Documents, to sell and deliver the Shares to be sold by each such Selling Shareholder pursuant to the Underwriting Agreement and to comply with its other obligations under the Transaction Documents have been obtained.
8. The Custody Agreements and the Powers of Attorney to which each Selling Shareholder is a party have been duly authorized by such Entity Shareholder and have executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder except as may be limited by applicable bankruptcy, insolvency (including without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally or the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
9. Based solely on the representations of the Selling Shareholders in the Custody Agreement and such counsel's examination of the certificates representing such Shares and assuming no security interests, claims, liens, equities, or other encumbrances not indicated by the foregoing, delivery of the Shares to be sold by each Selling Shareholder pursuant to the Underwriting Agreement will pass title to such Shares free and clear of any security interests, claims, liens, equities and other encumbrances.
10. The statements (Aa) in the Prospectus under the captions "Business-Intellectual Property and Licensing Rights," "Description of Capital Stock," "Shares Eligible for Future Sale" and caption "Underwriting" and (Bb) in the Registration Statement in Items 14 and Item 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present in all material respects the information called for with respect to such legal matters, documents and proceedings and fairly summarize constitute accurate summaries of the matters referred to therein in all material respects.
11. Such counsel does not have knowledge of (a) any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or (b) of any statutes, regulations, contracts or other documents that are required to be described or incorporated by reference in the Registration Statement or Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, incorporated by reference or filed as required.
12. The Company is not, and immediately after giving effect to the offering and sale of the Shares and the initial investment of the proceeds thereof will not be, an "investment company" as such term is defined in the Investment Company Act of 1940, as amended.
(a) Each document filed by the Company pursuant to the Exchange Act (except for financial statements and schedules and other financial and statistical data included therein as to which such counsel need not express any opinion) and incorporated or deemed to be incorporated by reference in the Prospectus complied when so filed as to form in all material respects with the Exchange Act and (b) such counsel has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents where filed, not misleading.
14. The Registration Statement and Prospectus (except for financial statements and schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
15. Such counsel has participated in the preparation of the Registration Statement and the Prospectus (other than the documents incorporated by reference therein) and in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and with the Representatives and counsel to the Representatives at which the contents of the Registration Statement and the Prospectus (including documents incorporated by reference therein) and related matters were discussed. Although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus (except as set forth in such counsel's opinion in paragraph 10 above), based upon the foregoing, such counsel has no reason to believe that (other than the financial statements and related schedules and other financial and statistical data included or incorporated by reference therein, as to which such counsel need not express any belief) the Registration Statement and the Prospectus included therein at the time the Registration Statement became effective 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 not misleading, or that, on the date of such opinion, the Prospectus contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
1. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Florida.
2. The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus or as therein proposed to be conducted. The Company has the corporate power and authority to enter into and perform its obligations under the Underwriting Agreement.
3. The statements in the Registration Statement in Item 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present in all material respects the information called for with respect to such legal matters, documents and proceedings and constitute accurate summaries of the matters referred to therein in all material respects.
4. The Shares to be purchased by the Underwriters from the Company have been duly authorized and, when sold and paid for in accordance with the Underwriting Agreement, will be validly issued, fully paid and non-assessable. None of the Shares of Common Stock being issued by the Company will be issued in violation of preemptive rights of any security holder of the Company.
5. The shares of Common Stock to be sold by the Selling Shareholders on the Closing Date have been duly authorized and validly issued and are fully paid and non-assessable.
6. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
7. The execution and delivery of the Underwriting Agreement by the Company, the performance by the Company of, and compliance with its obligations under, the Underwriting Agreement and the consummation of the transactions contemplated thereby do not and will not, result in any violation of (a) the provisions of its Articles of Incorporation or Bylaws, (b) any applicable law, statute, rule or regulation, or (c) any applicable judgment, order, writ or decree, in each case known to such counsel, of any government, government instrumentality or court of the State of Florida, having jurisdiction over the Company or any of its respective properties, assets or operations.
8. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency of the State of Florida is necessary or required in connection with the due authorization, execution and delivery of the Underwriting Agreement by the Company or for the offering, issuance, sale or delivery of the Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Cache Inc)
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7Sections 7 and 8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, Cruel WorldATHEROS COMMUNICATIONS, Inc., a Delaware corporation INC. By: --------------------------------- Name: Xxxxx Xxxxxx Title: Chief Executive Officer Accepted as of the date hereof Xxxxxx Xxxxxxx & Co. Incorporated Xxxxxx Brothers, Inc. Banc of America Securities LLC Xxxxxx Xxxxxx Partners LLC Acting severally on behalf of themselves and the several Underwriters named in SCHEDULE A Schedule I hereto. By: Xxxxxx Xxxxxx Partners LLC Xxxxxxx & Co. Incorporated By: ------------------------------------ Name: Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- Xxxxxx Xxxxxxx & Co. Incorporated Xxxxxx Brothers, Inc. Banc of America Securities LLC Xxxxxx Xxxxxx Partners LLC.............................................................. [Underwriter] [Underwriter]........................................................................... TOTAL........................................................................ EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL
LLC Total: , 2003 Xxxxxx Xxxxxxx & Co. Incorporated Xxxxxx Brothers, Inc. Banc of America Securities Xxxxxx Xxxxxx Partners LLC c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, XX 00000 Dear Sirs and Mesdames: The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated (i“Xxxxxx Xxxxxxx”) The Company has been duly incorporatedproposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Atheros Communications, is validly existing as Inc., a Delaware corporation in good standing under (the laws “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters, including Xxxxxx Xxxxxxx (the “Underwriters”), of shares (the “Shares”) of the jurisdiction of its incorporationcommon stock, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification$0.0005 par value, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company.
(ii) The authorized capital stock of the Company conforms as to legal matters to (the description thereof contained “Common Stock”). To induce the Underwriters that may participate in the Prospectus.
(iii) All of the outstanding shares of capital stock of the Company prior Public Offering to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid, non-assessable and not subject to any preemptive or similar rights.
(iv) The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(v) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(vi) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states continue their efforts in connection with the offer and sale Public Offering, the undersigned hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx, on behalf of the Shares.Underwriters, it will not, during the period commencing on the date hereof and ending one hundred eighty (180) days after the date of the final prospectus relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) transactions relating to shares of Common Stock or other securities acquired in open market transactions after the completion of the Public Offering, (b) transfers of shares of Common Stock or any security convertible into Common Stock as a bona fide gift or gifts, or (c) distributions of shares of Common Stock or any security convertible into Common Stock to limited partners or stockholders of the undersigned; provided that in the case of any transfer or distribution pursuant to clause (b) or (c), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter and (ii) the undersigned shall not be required to, and shall not voluntarily, file a report under Section 16(a) of the Securities Exchange Act of 1934, reporting a reduction in beneficial ownership of shares of Common Stock during the restricted period referred to in the foregoing sentence. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending one hundred eighty (180) days after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing restrictions. If:
(vii1) The statements (A) in during the Prospectus under the captions "Business-Intellectual Property and Licensing Rights," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" and (B) in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries last 17 days of the legal mattersone hundred eighty (180) day restricted period the Company issues a earnings release or material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the one hundred eighty (180) day restricted period, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize Company announces that it will release earnings results during the matters referred to therein.16-day period beginning on the last day of the one hundred eighty (180) day period,
Appears in 1 contract
Samples: Underwriting Agreement (Atheros Communications Inc)
Sophisticated Parties. Each of the parties hereto acknowledges that --------------------- it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, Cruel WorldRainmaker Systems, Inc.Inc. By:_________________________________________ Name: Xxxxxxx Xxxxxx Title: Chairman, a Delaware corporation By: --------------------------------- President and Chief Executive Officer Accepted as of the date hereof Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation Xxxxxx Xxxxxx Partners LLC XX Xxxxx Securities Corporation Acting severally on behalf of themselves and the several Underwriters named in SCHEDULE Schedule A hereto. ---------- By: Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation By:_______________________________ Name: Title: By: Xxxxxx Xxxxxx Partners LLC By: ------------------------------------ :______________________________ Name: Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- Xxxxxx Xxxxxx Partners LLC.............................................................. [Underwriter] [Underwriter]........................................................................... TOTAL........................................................................ EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company.
(ii) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus.
(iii) All of the outstanding shares of capital stock of the Company prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid, non-assessable and not subject to any preemptive or similar rights.
(iv) The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(v) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(vi) The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(vii) The statements (A) in the Prospectus under the captions "Business-Intellectual Property and Licensing Rights," "Description of Capital Stock," "Shares Eligible for Future Sale" and "Underwriting" and (B) in the Registration Statement in Items 14 and 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.----------
Appears in 1 contract
