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 8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 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, HARVARD BIOSCIENCE, INC. By: ------------------------------ Name: Title: The Selling Stockholder named in Schedule B hereto, acting severally By: ------------------------------ Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings 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 UNDERWRITER NUMBER OF FIRM NUMBER OF ADDITIONAL SHARES SHARES TO BE TO BE PURCHASED PURCHASED IF MAXIMUM OPTION EXERCISED Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings LLC [NAMES OF OTHER UNDERWRITERS] total SCHEDULE B SELLING NUMBER OF FIRM STOCKHOLDER SHARES TO BE SOLD XXXXX XXXXX Total EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL THE FINAL OPINION IN DRAFT FORM SHOULD BE ATTACHED AS EXHIBIT A AT THE TIME THIS AGREEMENT IS EXECUTED. 1. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation, has the corporate power to conduct its business as described in the Prospectus and is qualified to transact business as a foreign corporation and is in good standing in each jurisdiction listed on Annex A to this opinion. 2. Each subsidiary of the Company is a corporation validly existing and in good standing under the laws of the jurisdiction of its incorporation, has the corporate power to conduct its business as described in the Prospectus and is qualified to transact business as a foreign corporation and is in good standing in each jurisdiction listed next to its name on Annex B to this opinion. 3. All of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable, free and clear of all liens, encumbrances, or claims. All of the issued and outstanding shares of capital stock of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and are owned of record by the Company or by a wholly-owned subsidiary of the Company, free and clear of all liens, encumbrances, equities or claims, except as disclosed in the Prospectus and any liens, encumbrances, equities or claims generally placed on the Company's assets in the ordinary course of business. 4. The authorized capital stock of the Company conforms, in all material respects, as to legal matters to the description thereof contained in the Prospectus. 5. The shares of Common Stock (including the Shares to be sold by the Selling Stockholder) outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid and non-assessable. 6. 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 statutory preemptive or other similar rights under the Company's certificate of incorporation, by-laws or, to such counsel's knowledge, any agreement to which the Company is a party. 7. The Underwriting Agreement has been duly authorized, executed and delivered by the Company. 8. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not (i) result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or, (ii) result in a breach or default on the part of the Company under any agreement or other instrument filed as an exhibit to the Registration Statement, or of which such counsel has knowledge, to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound, (iii) result in a violation on the part of the Company of any existing Massachusetts, Delaware General Corporation Law or federal statute or regulation or, to such counsel's knowledge, any judgment, order or decree of any body, agency or court and no consent, approval, authorization or order of, or qualification with, any Massachusetts or federal body or agency is required to be obtained by the Company for the performance by the Company of its obligations under this Agreement, except that such counsel need express no opinion as to state securities or "Blue Sky" laws or as to compliance with the antifraud provisions of federal and state securities laws. 9. The statements (A) in the Prospectus under the caption "Benefit Plans," "Description of Capital Stock" and "Shares Eligible for Future Sale" 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, are accurate summaries in all material respects of 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 8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 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, HARVARD BIOSCIENCEIMPAC Medical Systems, INC. Inc. By: ------------------------------ :_________________________________________ Name: Xxxxxx X. Xxxxxxxxxxx Title: President and Chief Executive Officer The Selling Stockholder Stockholders named in Schedule B hereto, acting severally By: ------------------------------ :_________________________________________ Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings LLC U.S. Bancorp Xxxxx Xxxxxxx XX Xxxxx Securities Corporation 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 UNDERWRITER NUMBER OF FIRM NUMBER OF ADDITIONAL SHARES SHARES TO BE TO BE PURCHASED PURCHASED IF MAXIMUM OPTION EXERCISED Number of Underwriter Firm Shares To Be Purchased Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings LLC U.S. Bancorp Xxxxx Xxxxxxx XX Xxxxx Securities Corporation [NAMES OF OTHER UNDERWRITERS] total Total SCHEDULE B Number of Selling Stockholder Additional Shares To Be Sold [NAMES OF SELLING NUMBER OF FIRM STOCKHOLDER SHARES TO BE SOLD XXXXX XXXXX SHAREHOLDERS] Total EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL THE FINAL OPINION IN DRAFT FORM SHOULD BE ATTACHED AS EXHIBIT A AT THE TIME THIS AGREEMENT IS EXECUTED.Form of Legal Opinion of Company Counsel
1. i. The Company is a corporation has been duly incorporated, is validly existing and 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 as a foreign corporation and is in good standing in each jurisdiction listed 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 Annex A to this opinionthe Company and its subsidiaries, taken as a whole.
2ii. Each subsidiary of the Company IMPAC Global Systems, Inc. has been duly incorporated, is validly existing as a corporation validly existing and 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 as a foreign corporation and is in good standing in each jurisdiction listed next 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 name on Annex B to this opinionsubsidiaries, taken as a whole.
3iii. All of the issued and outstanding shares of capital stock of the Company IMPAC Global Systems, Inc. have been duly and validly authorized and validly issued and are fully paid and non-assessable, free and clear of all liens, encumbrances, or claims. All of the issued and outstanding shares of capital stock of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and are owned of record directly by the Company or by a wholly-owned subsidiary of the Company, free and clear of all liens, encumbrances, equities or claims, except as disclosed in the Prospectus and any liens, encumbrances, equities or claims generally placed on the Company's assets in the ordinary course of business.
4. The authorized capital stock of the Company conforms, in all material respects, as to legal matters to the description thereof contained in the Prospectus.
5iv. The shares of Common Stock (including the Shares to be sold by the Selling Stockholder) outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid and non-assessable.
6. 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 statutory preemptive or other similar rights under the Company's certificate of incorporation, by-laws or, to such counsel's knowledge, any agreement to which the Company is a partyrights.
7vi. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
8vii. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not (i) result in contravene any violation provision of the provisions of applicable law or the certificate of incorporation or by-laws of the Company or, (ii) result in a breach or default on to the part best of the Company under such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its subsidiaries that that has been filed as an exhibit to the Registration Statement, or of which such counsel has knowledge, to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound, (iii) result in a violation on the part of the Company of any existing Massachusetts, Delaware General Corporation Law or federal statute or regulation 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 Massachusetts or federal governmental body or agency is required to be obtained by the Company for the performance by the Company of its obligations under this Agreement, except that 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 Shares or (c) may be required by the NASD, in each case as to which such counsel need express no opinion as to state securities or "Blue Sky" laws or as to compliance with the antifraud provisions of federal and state securities lawsopinion.
9viii. The statements (A) in the Prospectus under the caption captions "Benefit Management--Stock Plans," "Management--Indemnification," "Description of Capital Stock" and "Shares Eligible for Future SaleUnderwriting" 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, are accurate summaries in all material respects of 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 8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 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 Disclosure Package and the Prospectus each Offering Circular (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, HARVARD BIOSCIENCEAMBASSADORS INTERNATIONAL, INC. By: ------------------------------ /s/ Xxxxx Xxxxxxxxx Name: Xxxxx X. Xxxxxxxxx Title: The Selling Stockholder named in Schedule B hereto, acting severally By: ------------------------------ Attorney-in-Fact Chief Financial Officer Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings LLC Acting severally on behalf of themselves and the several Underwriters named in Schedule A hereto. Byfirst above written: Xxxxxx Xxxxxx Partners XXXXXX XXXXXX PARTNERS LLC By: --------------------------- /s/ Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx Title: SCHEDULE A UNDERWRITER NUMBER OF FIRM NUMBER OF ADDITIONAL SHARES SHARES TO BE TO BE PURCHASED PURCHASED IF MAXIMUM OPTION EXERCISED Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings LLC [NAMES OF OTHER UNDERWRITERS] total SCHEDULE B SELLING NUMBER OF FIRM STOCKHOLDER SHARES TO BE SOLD XXXXX XXXXX Total EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL THE FINAL OPINION IN DRAFT FORM SHOULD BE ATTACHED AS EXHIBIT A AT THE TIME THIS AGREEMENT IS EXECUTED.
1. The Company is a corporation duly incorporatedPrinciple On April 25, validly existing and in good standing under the laws of the jurisdiction of its incorporation2006, has the corporate power to conduct its business as described in the Prospectus and is qualified to transact business as a foreign corporation and is in good standing in each jurisdiction listed on Annex A to this opinion.
2. Each subsidiary of the Company is a corporation validly existing and in good standing under the laws of the jurisdiction of its incorporation, has the corporate power to conduct its business as described in the Prospectus and is qualified to transact business as a foreign corporation and is in good standing in each jurisdiction listed next to its name on Annex B to this opinion.
3. All of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable, free and clear of all liens, encumbrances, or claims. All of the issued and outstanding shares of capital stock of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and are owned of record by the Company or by a wholly-owned subsidiary one of the Company’s subsidiaries acquired certain assets of Delta Steamboat Company, free Inc., including three vessels, the Delta Queen, the American Queen and clear of all liens, encumbrances, equities or claims, except as disclosed in the Prospectus and any liens, encumbrances, equities or claims generally placed on the Company's assets in the ordinary course of business.
4Mississippi Queen. The authorized capital stock of the Delta Queen Steamboat Company conforms, in all material respects, as to legal matters to the description thereof contained in the Prospectus.
5. The shares of Common Stock (including the Shares to be sold by the Selling Stockholder) outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid and non-assessable.
6. The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance has a collective bargaining agreement with the terms of the Underwriting AgreementAmerican Maritime Officers union (“AMO”), will be validly issued, fully paid and non-assessable, and the issuance of such Shares will which was not be subject to any statutory preemptive or other similar rights under the Company's certificate of incorporation, by-laws or, to such counsel's knowledge, any agreement to which the Company is a party.
7. The Underwriting Agreement has been duly authorized, executed and delivered assumed by the Company.
8. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not (i) result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or, (ii) result in a breach or default on the part of the Company under any agreement or other instrument filed as an exhibit to the Registration Statement, or of which such counsel has knowledge, to which the Company or any of its subsidiaries in connection with the purchase of certain assets from the Delta Queen Steamboat Company. On November 28, 2006, a grievance was noticed by AMO to Ambassadors International and Ambassadors Cruise Group as well as the Delta Steamboat Company and Delaware North Companies (the parent entity of Delta Queen Steamboat Company) for failure to honor the collective bargaining agreement with AMO. The Company’s last communication in this regard was to inform the AMO that it has no current bargaining relationship with the AMO, nor a duty or obligation to arbitrate. The arbitration of this matter is scheduled for the first week of May 2007 in New York City and the Company will not be a party or by which to the Company or any of its subsidiaries is bound, (iii) result in a violation on the part of the Company of any existing Massachusetts, Delaware General Corporation Law or federal statute or regulation or, to such counsel's knowledge, any judgment, order or decree of any body, agency or court and no consent, approval, authorization or order of, or qualification with, any Massachusetts or federal body or agency is required to be obtained by the Company for the performance by the Company of its obligations under this Agreement, except that such counsel need express no opinion as to state securities or "Blue Sky" laws or as to compliance with the antifraud provisions of federal and state securities lawsarbitration proceedings.
9. The statements (A) in the Prospectus under the caption "Benefit Plans," "Description of Capital Stock" and "Shares Eligible for Future Sale" 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, are accurate summaries in all material respects of the matters referred to therein.
Appears in 1 contract
Sophisticated Parties. Each The Parties each acknowledge, accept, warrant and represent that (i) they are sophisticated Parties represented at all relevant times during the negotiation and execution of this Agreement by counsel of their choice, and that they have executed this Agreement with the consent and on the advice of such independent legal counsel, and (ii) they and their counsel have determined through independent investigation, extensive due diligence, and robust, arms-length negotiation that the terms of this Agreement shall exclusively embody and govern the subject matter of this Agreement. * CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereofday and year first above written. ParkerVision, including, without limitation, the indemnification and contribution provisions of Section 8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Inc. (as “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, HARVARD BIOSCIENCE, INC. ”) By: ------------------------------ ______________________________ Name: Title: The Selling Stockholder named in Schedule B hereto, acting severally 1624 PV LLC (as “Funder”) By: ------------------------------ Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings 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 UNDERWRITER NUMBER OF FIRM NUMBER OF ADDITIONAL SHARES SHARES * CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO BE TO BE PURCHASED PURCHASED IF MAXIMUM OPTION EXERCISED Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings LLC THE OMITTED PORTIONS. PATENTS All patents owned by Company including any additional reissue, re-examination, continuations, continuations-in-part, applications, patents pending and/or counterparts. ENFORCEMENT PLAN Company shall pursue Enforcement (through litigation or otherwise) against one of the Initial Targets [NAMES OF OTHER UNDERWRITERS*]. Subject to the mutual agreement of the Parties, Company may expand the Enforcement through [*]. INITIAL TARGETS [*] total SCHEDULE B SELLING NUMBER OF FIRM STOCKHOLDER SHARES TO BE SOLD XXXXX XXXXX Total EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL THE FINAL OPINION IN DRAFT FORM SHOULD BE ATTACHED AS EXHIBIT A AT THE TIME THIS AGREEMENT IS EXECUTED.
1as agreed upon by Company and Funder. ATTORNEYS [*] COMMITTED CAPITAL Committed Capital shall be $7,000,000 in the aggregate. The Company is a corporation duly incorporated, validly existing Committed Capital may be reduced upon [*] and in good standing under where the laws of the jurisdiction of its incorporation, has the corporate power Parties consent to conduct its business as described in the Prospectus and is qualified to transact business as a foreign corporation and is in good standing in each jurisdiction listed on Annex A to this opinion.
2such adjustment. Each subsidiary of the Company is a corporation validly existing and in good standing under the laws of the jurisdiction of its incorporation, has the corporate power to conduct its business as described in the Prospectus and is qualified to transact business as a foreign corporation and is in good standing in each jurisdiction listed next to its name on Annex B to this opinion.
3. All of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable, free and clear of all liens, encumbrances, or claims. All of the issued and outstanding shares of capital stock of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and are owned of record by the Company or by a wholly-owned subsidiary of the Company, free and clear of all liens, encumbrances, equities or claims, except as disclosed in the Prospectus and any liens, encumbrances, equities or claims generally placed on the Company's assets in the ordinary course of business.
4. The authorized capital stock of the Company conforms, in all material respects, as to legal matters REIMBURSEMENT AMOUNT An amount equal to the description thereof contained in the ProspectusReleased Funding. * CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
5. The shares of Common Stock (including the Shares to be sold by the Selling Stockholder) outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid and non-assessable.
6. 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 statutory preemptive or other similar rights under the Company's certificate of incorporation, by-laws or, to such counsel's knowledge, any agreement to which the Company is a party.
7. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
8. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not (i) result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or, (ii) result in a breach or default on the part of the Company under any agreement or other instrument filed as an exhibit to the Registration Statement, or of which such counsel has knowledge, to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound, (iii) result in a violation on the part of the Company of any existing Massachusetts, Delaware General Corporation Law or federal statute or regulation or, to such counsel's knowledge, any judgment, order or decree of any body, agency or court and no consent, approval, authorization or order of, or qualification with, any Massachusetts or federal body or agency is required to be obtained by the Company for the performance by the Company of its obligations under this Agreement, except that such counsel need express no opinion as to state securities or "Blue Sky" laws or as to compliance with the antifraud provisions of federal and state securities laws.
9. The statements (A) in the Prospectus under the caption "Benefit Plans," "Description of Capital Stock" and "Shares Eligible for Future Sale" 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, are accurate summaries in all material respects of the matters referred to therein.
Appears in 1 contract
Samples: Funding Agreement (Parkervision 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 8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 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, HARVARD BIOSCIENCE, INC. EXACT SCIENCES CORPORATION By: ------------------------------ Name: Title: The Selling Stockholder named in Schedule B hereto, acting severally By: ------------------------------ Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings LLC ---------------- [NAMES OF OTHER REPRESENTATIVE(S)] Acting severally on behalf of themselves and the several Underwriters named in Schedule A heretothe applicable Terms Agreement. By: Xxxxxx Xxxxxx Partners LLC ---------------- By: --------------------------- -------------------------------- Name: Title: SCHEDULE A UNDERWRITER NUMBER OF FIRM NUMBER OF ADDITIONAL SHARES SHARES TO BE TO BE PURCHASED PURCHASED IF MAXIMUM OPTION EXERCISED Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings LLC [NAMES OF OTHER UNDERWRITERS] total SCHEDULE B SELLING NUMBER OF FIRM STOCKHOLDER SHARES TO BE SOLD XXXXX XXXXX Total 19 EXHIBIT A FORM FORMS OF LEGAL OPINION OF COMPANY COUNSEL THE FINAL OPINION IN DRAFT FORM SHOULD BE ATTACHED AS EXHIBIT A AT THE TIME THIS AGREEMENT IS EXECUTED.
1. TERMS AGREEMENTS EXACT SCIENCES CORPORATION ("COMPANY") DEBT SECURITIES , To: The Company is a corporation duly incorporated, validly existing and in good standing under the laws [Representative[s] of the jurisdiction of its incorporation, has the corporate power the] Underwriters identified herein Dear Sirs: The undersigned agrees to conduct its business as described in the Prospectus and is qualified to transact business as a foreign corporation and is in good standing in each jurisdiction listed on Annex A to this opinion.
2. Each subsidiary of the Company is a corporation validly existing and in good standing under the laws of the jurisdiction of its incorporation, has the corporate power to conduct its business as described in the Prospectus and is qualified to transact business as a foreign corporation and is in good standing in each jurisdiction listed next to its name on Annex B to this opinion.
3. All of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable, free and clear of all liens, encumbrances, or claims. All of the issued and outstanding shares of capital stock of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and are owned of record by the Company or by a wholly-owned subsidiary of the Company, free and clear of all liens, encumbrances, equities or claims, except as disclosed in the Prospectus and any liens, encumbrances, equities or claims generally placed on the Company's assets in the ordinary course of business.
4. The authorized capital stock of the Company conforms, in all material respects, as to legal matters sell to the description thereof contained several Underwriters named in the Prospectus.
5. The shares of Common Stock (including the Shares to be sold by the Selling Stockholder) outstanding prior Schedule A hereto for their respective accounts, on and subject to the issuance of the Shares to be sold by the Company have been duly authorized terms and are validly issued, fully paid and non-assessable.
6. The Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms conditions 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 statutory preemptive or other similar rights under the Company's certificate of incorporation, by-laws or, to such counsel's knowledge, any agreement to which the Company is a party.
7. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
8. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not (i) result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or, (ii) result in a breach or default on the part of the Company under any agreement or other instrument filed as an exhibit to the Registration StatementCompany's registration statement on Form S-3 (No. 333-108679) ("UNDERWRITING AGREEMENT"), the following securities ("OFFERED SECURITIES") on the following terms: TITLE: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due. PRINCIPAL AMOUNT: $ . OVER-ALLOTMENT: In addition, upon written notice from the Representative[s] given to the Company from time to time not more than 30 days subsequent to the date hereof, the Underwriters may purchase up to $ additional principal amount of the Offered Securities (the "Option Securities") at the purchase price. The Company agrees to sell to the Underwriters the Option Securities, and the Underwriters agree, severally and not jointly, to purchase such Option Securities. Such Option Securities shall be purchased for the account of each Underwriter in the same proportion as the Principal Amount of Offered Securities set forth opposite such Underwriter's name on Schedule A hereto (subject to adjustment by the Representative[s] to eliminate fractions) and may be purchased by the Underwriters only for the purpose of covering over-allotments made in connection with the sale of the Offered Securities. No Option Securities shall be sold or delivered unless the Offered Securities previously have been, or of which such counsel has knowledgesimultaneously are, sold and delivered. The right to purchase the Option Securities or any portion thereof may be exercised from time to time and to the extent not previously exercised may be surrendered and terminated at any time upon notice by the Representative[s] to the Company. INTEREST: [ % per annum, from , , payable semiannually on and , commencing , , to which the Company or any holders of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound, (iii) result in a violation record on the part preceding or , as the case may be.] [Zero coupon.] MATURITY: , . OPTIONAL REDEMPTION: SINKING FUND: LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock Market Inc.'s National Market.] PURCHASE PRICE: % of the Company principal amount, plus accrued interest[, if any,] from , . EXPECTED REOFFERING PRICE: % of any existing Massachusettsprincipal amount, Delaware General Corporation Law or federal statute or regulation or, subject to such counsel's knowledge, any judgment, order or decree of any body, agency or court and no consent, approval, authorization or order of, or qualification with, any Massachusetts or federal body or agency is required to be obtained change by the Company for the performance by the Company of its obligations under this Agreement, except that such counsel need express no opinion as to state securities or "Blue Sky" laws or as to compliance with the antifraud provisions of federal and state securities laws[Representative[s] [Underwriters].
9. The statements (A) in the Prospectus under the caption "Benefit Plans," "Description of Capital Stock" and "Shares Eligible for Future Sale" 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, are accurate summaries in all material respects of the matters referred to therein.
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Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who or which was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 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, HARVARD BIOSCIENCE, INC. SELECT COMFORT CORPORATION By: ------------------------------ :_________________________________________ Name: Title: The Selling Stockholder Shareholders named in Schedule B hereto, acting severally By: ------------------------------ :_________________________________________ Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx Thomas Weisel Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings LLC Acting severally on behalf U.S. Bancorp Piper Jaffray Inc. Adams, Harknexx & Xixx, Xxc. Craig-Hallum Capital Groxx, XXX Xxxxng sevxxxxxy xx xxxxxf xx themselxxx xxx xx xepresentatives of themselves and the several Underwriters named in Schedule A hereto. By: Xxxxxx Xxxxxx Thomas Weisel Partners LLC By: --------------------------- Name:_____________________________ Xxxx: Title: SCHEDULE A UNDERWRITER NUMBER OF FIRM SHARES TO BE PURCHASED --------------- Thomas Weisel Partners LLC U.S. Bancorp Piper Jaffray Inc. Adams, Harknexx & Xixx, Xxc. Craig-Hallum Capital Groxx XXX Xxtal SCHEDULE B NUMBER OF FIRM MAXIMUM NUMBER SHARES OF ADDITIONAL SHARES SHARES TO BE TO BE PURCHASED PURCHASED IF MAXIMUM OPTION EXERCISED Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings LLC [NAMES OF OTHER UNDERWRITERS] total SCHEDULE B SELLING NUMBER OF FIRM STOCKHOLDER SHARES SHAREHOLDER TO BE SOLD XXXXX XXXXX TO BE SOLD ------------------- --------------- -------------------- St. Paul Companies Renaissance US Growth & Income Trust PLC BFS US Special Xxxortunities Trust PLC Total EXHIBIT A C FORM OF LEGAL OPINION OF COMPANY COUNSEL LOCK-UP AGREEMENT ____________, 2003 Thomas Weisel Partners LLC U.S. Bancorp Piper Jaffray Inc. Adams, Harknexx & Xixx, Xxc. Craig-Hallum Capital Groxx, Xxx. Xx Xepresexxxxxvex xx xxx sexxxxl Underxxxxxxx x/x Thomas Weisel Partners LLC One Montgomery Street, Suite 3700 San Francisco, Calxxxxxxa 94104 XX: XXXX-XX XXXXXXXXX (THE FINAL OPINION IN DRAFT FORM SHOULD BE ATTACHED AS EXHIBIT A AT THE TIME THIS AGREEMENT IS EXECUTED.
1"AGREEMENT") Ladies and Gentlemen: The undersigned is an owner of record or beneficially of certain shares of Common Stock, par value $________ per share (the "COMMON STOCK"), of Select Comfort Corporation, a Minnesota Corporation (the "COMPANY"). The Company is a corporation duly incorporatedundersigned understands that you, validly existing and in good standing under as representatives (the laws "REPRESENTATIVES"), propose to enter into an Underwriting Agreement on behalf of the jurisdiction of its incorporation, has the corporate power to conduct its business as described several Underwriters named in the Prospectus and is qualified to transact business as a foreign corporation and is in good standing in each jurisdiction listed on Annex Schedule A to this opinion.
2. Each subsidiary such agreement (collectively, the "UNDERWRITERS"), with the Company and certain Selling Shareholders providing for a public offering of the Common Stock of the Company is pursuant to a corporation validly existing Registration Statement on Form S-3 to be filed with the Securities and Exchange Commission (the "OFFERING"). The undersigned recognizes that the Offering will be of benefit to the undersigned and will benefit the Company. The undersigned acknowledges that you and the other Underwriters are relying on the representations and agreements of the undersigned contained in this letter in carrying out the Offering and in good standing under entering into underwriting arrangements with the laws Company and such Selling Shareholders with respect to the Offering. To induce the Underwriters that may participate in the Offering to continue their efforts in connection with the Offering, the undersigned hereby agrees that, without the prior written consent of Thomas Weisel Partners (which consent may be withheld in its sole discrexxxx), xx xxxl not, during the period commencing on the date hereof and ending 90 days after the date of the jurisdiction of its incorporationfinal prospectus relating to the Offering (the "PROSPECTUS"), has the corporate power (1) offer, pledge, sell, contract to conduct its business as described in the Prospectus and is qualified sell, sell any option or contract to transact business as a foreign corporation and is in good standing in each jurisdiction listed next purchase, purchase any option or contract to its name on Annex B sell, grant any option, right or warrant to this opinion.
3. All of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessablepurchase, free and clear of all liens, encumbranceslend, or claims. All of the issued and outstanding shares of capital stock of each subsidiary of the Company have been duly authorized and validly issuedotherwise transfer or dispose of, are fully paid and non-assessable and are owned of record by the Company directly or by a wholly-owned subsidiary of the Companyindirectly, free and clear of all liens, encumbrances, equities or claims, except as disclosed in the Prospectus and any liens, encumbrances, equities or claims generally placed on the Company's assets in the ordinary course of business.
4. The authorized capital stock of the Company conforms, in all material respects, as to legal matters to the description thereof contained in the Prospectus.
5. The shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (including 2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the Shares economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be sold settled by delivery of Common Stock or such other securities, in cash or otherwise. In addition, the undersigned agrees that, without the prior written consent of Thomas Weisel Partners (which consent may be withheld in its sole discrexxxx), xx xxxl not, during the period commencing on the date hereof and ending 90 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. With respect to the Offering, the undersigned waives any registration rights relating to registration under the Securities Act of any Common Stock owned either of record or beneficially by the Selling Stockholder) outstanding prior undersigned, including any rights to the issuance receive notice of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid and non-assessable.
6Offering. The Shares foregoing restrictions are expressly agreed to be sold by preclude the Company have been duly authorized and, when issued and delivered undersigned from engaging 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 statutory preemptive hedging or other similar rights under the Company's certificate of incorporation, by-laws or, transaction which is designed to such counsel's knowledge, any agreement or reasonably expected to which the Company is a party.
7. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
8. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not (i) result in any violation of the provisions of the certificate of incorporation lead to or by-laws of the Company or, (ii) result in a breach sale or default on disposition of the Common Stock even if such Common Stock would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put option or put equivalent position or call option or call equivalent position) with respect to any of the Common Stock or with respect to any security that includes, relates to, or derives any significant part of the Company under any agreement or other instrument filed as an exhibit to the Registration Statement, or of which its value from such counsel has knowledge, to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound, (iii) result in a violation on the part of the Company of any existing Massachusetts, Delaware General Corporation Law or federal statute or regulation or, to such counsel's knowledge, any judgment, order or decree of any body, agency or court and no consent, approval, authorization or order of, or qualification with, any Massachusetts or federal body or agency is required to be obtained by the Company for the performance by the Company of its obligations under this Agreement, except that such counsel need express no opinion as to state securities or "Blue Sky" laws or as to compliance with the antifraud provisions of federal and state securities lawsCommon Stock.
9. The statements (A) in the Prospectus under the caption "Benefit Plans," "Description of Capital Stock" and "Shares Eligible for Future Sale" 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, are accurate summaries in all material respects of 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 88 above, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 8 hereto above 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, HARVARD BIOSCIENCEARENA PHARMACEUTICALS, INC. By: ------------------------------ -------------------------------- Name: Title: The Selling Stockholder Stockholders named in Schedule SCHEDULE B attached hereto, acting severally By: ------------------------------ -------------------------------- Attorney-in-Fact Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings ABN AMRO Rothschild LLC Lazard Freres & Co. LLC Acting severally on behalf of themselves and the several Underwriters named in Schedule SCHEDULE A attached hereto. By: Xxxxxx Xxxxxx Partners LLC By: --------------------------- ------------------------------------- Name: Title: [Signature Page to Underwriting Agreement] SCHEDULE A UNDERWRITER NUMBER OF FIRM NUMBER OF ADDITIONAL SHARES SHARES TO BE UNDERWRITER TO BE PURCHASED PURCHASED IF MAXIMUM OPTION EXERCISED ----------- --------------- Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxxxxx Incorporated ING Barings ABN AMRO Rothschild LLC [NAMES OF OTHER UNDERWRITERS] total Lazard Freres & Co. LLC Total: 4,000,000 ========= SCHEDULE B SELLING NUMBER OF FIRM SHARES SELLING STOCKHOLDER SHARES TO BE SOLD XXXXX XXXXX Total BB BioVentures L.P. 779,084 MPM BioVentures Parallel Fund, L.P. 111,556 MPM Asset Management Investors 1999 LLC 9,360 -------- Tripos, Inc. 100,000 Total: 1,000,000 ========= SCHEDULE C INTELLECTUAL PROPERTY PATENTS AND PATENT APPLICATIONS REGISTERED MARKS AND APPLIED MARKS CART Arena Aressa ChemNavigator BRL Screening COLLABORATION AGREEMENTS EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL LOCK-UP AGREEMENT ____________, 2001 Xxxxxx Xxxxxx Partners LLC [Other Representatives] As Representatives of the several Underwriters c/o Thomas Xxxxxx Partners LLC Xxx Xxxxxxxxxx Xxxxxx, Suite 3700 San Francisco, California 94104 RE: LOCK-UP AGREEMENT (THE FINAL OPINION IN DRAFT FORM SHOULD BE ATTACHED AS EXHIBIT A AT THE TIME THIS AGREEMENT IS EXECUTED.
1"AGREEMENT") Ladies and Gentlemen: The undersigned is an owner of record or beneficially of certain shares of Common Stock, par value $0.0001 per share (the "COMMON STOCK"), of Arena Pharmaceuticals, Inc., a Delaware corporation (the "COMPANY"), or securities convertible into or exchangeable or exercisable for Common Stock. The Company is a corporation duly incorporatedundersigned understands that you, validly existing and in good standing under as representatives (the laws "REPRESENTATIVES"), propose to enter into an Underwriting Agreement on behalf of the jurisdiction of its incorporation, has the corporate power to conduct its business as described several Underwriters named in the Prospectus and is qualified to transact business as a foreign corporation and is in good standing in each jurisdiction listed on Annex SCHEDULE A to this opinion.
2. Each subsidiary such agreement (collectively, the "UNDERWRITERS"), with the Company providing for a public offering of the Common Stock of the Company is pursuant to a corporation validly existing Registration Statement on form S-1 to be filed with the Securities and Exchange Commission (the "PUBLIC OFFERING"). The undersigned recognizes that the Public Offering will be of benefit to the undersigned and will benefit the Company by, among other things, raising additional capital for its operations. The undersigned acknowledges that you and the other Underwriters are relying on the representations and agreements of the undersigned contained in this letter in carrying out the Public Offering and in good standing under entering into underwriting arrangements with the laws Company with respect to the Public Offering. To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Xxxxxx Xxxxxx Partners (which consent may be withheld in its sole discretion), it will not, during the period commencing on the date hereof and ending 90 days after the date of the jurisdiction of its incorporationfinal prospectus relating to the Public Offering (the "PROSPECTUS"), has the corporate power (1) offer, pledge, sell, contract to conduct its business as described in the Prospectus and is qualified sell, sell any option or contract to transact business as a foreign corporation and is in good standing in each jurisdiction listed next purchase, purchase any option or contract to its name on Annex B sell, grant any option, right or warrant to this opinion.
3. All of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessablepurchase, free and clear of all liens, encumbranceslend, or claims. All of the issued and outstanding shares of capital stock of each subsidiary of the Company have been duly authorized and validly issuedotherwise transfer or dispose of, are fully paid and non-assessable and are owned of record by the Company directly or by a wholly-owned subsidiary of the Companyindirectly, free and clear of all liens, encumbrances, equities or claims, except as disclosed in the Prospectus and any liens, encumbrances, equities or claims generally placed on the Company's assets in the ordinary course of business.
4. The authorized capital stock of the Company conforms, in all material respects, as to legal matters to the description thereof contained in the Prospectus.
5. The shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (including 2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the Shares economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be sold settled by delivery of Common Stock or such other securities, in cash or otherwise. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxx Partners (which consent may be withheld in its sole discretion), it will not, during the period commencing on the date hereof and ending 90 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. With respect to the Public Offering, the undersigned waives any registration rights relating to registration under the Securities Act of any Common Stock owned either of record or beneficially by the Selling Stockholder) outstanding prior undersigned, including any rights to the issuance receive notice of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid and non-assessable.
6Public Offering. The Shares foregoing restrictions are expressly agreed to be sold by preclude the Company have been duly authorized and, when issued and delivered undersigned from engaging 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 statutory preemptive hedging or other similar rights under the Company's certificate of incorporation, by-laws or, transaction which is designed to such counsel's knowledge, any agreement or reasonably expected to which the Company is a party.
7. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
8. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not (i) result in any violation of the provisions of the certificate of incorporation lead to or by-laws of the Company or, (ii) result in a breach sale or default on disposition of the Common Stock even if such Common Stock would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put option or put equivalent position or call option or call equivalent position) with respect to any of the Common Stock or with respect to any security that includes, relates to, or derives any significant part of the Company under any agreement or other instrument filed as an exhibit to the Registration Statement, or of which its value from such counsel has knowledge, to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound, (iii) result in a violation on the part of the Company of any existing Massachusetts, Delaware General Corporation Law or federal statute or regulation or, to such counsel's knowledge, any judgment, order or decree of any body, agency or court and no consent, approval, authorization or order of, or qualification with, any Massachusetts or federal body or agency is required to be obtained by the Company for the performance by the Company of its obligations under this Agreement, except that such counsel need express no opinion as to state securities or "Blue Sky" laws or as to compliance with the antifraud provisions of federal and state securities lawsCommon Stock.
9. The statements (A) in the Prospectus under the caption "Benefit Plans," "Description of Capital Stock" and "Shares Eligible for Future Sale" 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, are accurate summaries in all material respects of the matters referred to therein.
Appears in 1 contract
