The Company’s Representations and Warranties. The Company represents and warrants to Sellers as follows: (a) The Company is a corporation duly incorpo- rated, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to execute and deliver this Agreement and the Registration Rights Agreement and to consummate the trans- actions contemplated hereby and thereby. This Agreement and the Registration Rights Agreement have been duly executed and delivered by the Company, and, assuming the due execution here- of by each other party hereto and thereto, constitute the le- gal, valid and binding obligations of the Company, enforceable against the Company in accordance with the terms hereof and thereof. (b) The Company has not entered into any agree- ment, is not engaged in any discussions, and has not authorized its representatives to engage in such discussions, with respect to any transaction (i) that upon consummation would constitute a "Change of Control" of the Company as defined in Section 6(g), (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stock. (c) Neither the execution and delivery by the Company of this Agreement nor the consummation by the Company of the transactions contemplated hereby will violate or con- flict with, or constitute a default under, or result in the creation or imposition of any Encumbrance upon any of the assets or properties of the Company under (i) the Company's Restated Certificate of Incorporation or bylaws, (ii) any agreement, judgment, order or other obligation to which the Company is a party or by which the Company is bound, or (iii) any law or regulation applicable to the Company or its assets or properties, except for such violations, conflicts, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not prevent, materially delay or materially adversely affect the consummation of the transactions contemplated by this Agreement or (y) will be waived or otherwise released prior to the Closing as promptly as practicable (but in any event within 60 days) following the date of this Agreement. (d) The Company has taken all necessary action to ensure that neither the entering into of this Agreement or the Registration Rights Agreement nor the consummation of the transactions contemplated hereby or thereby will (i) cause the preferred share purchase rights issued pursuant to the Rights Agreement, dated as of March 8, 1988, as amended, between the Company and First Chicago Trust Company of New York, as Rights Agent (the "Rights Agreement"), to become exercisable, (ii) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined in the Rights Agreement) or (iii) cause a
Appears in 2 contracts
Samples: Stock Purchase Agreement (Skaggs Lennie S), Stock Purchase Agreement (American Stores Co /New/)
The Company’s Representations and Warranties. The Company hereby represents and warrants to Sellers as followsthe following:
(a) The the Company is a corporation duly incorpo- ratedorganized, validly existing and in good standing under the laws of the State of Delaware. The Company Hong Kong and has all requisite corporate necessary power and authority to execute own all of its properties and deliver this Agreement and the Registration Rights Agreement assets and to consummate the trans- actions contemplated hereby and thereby. This Agreement and the Registration Rights Agreement have been duly executed and delivered by the Company, and, assuming the due execution here- of by each other party hereto and thereto, constitute the le- gal, valid and binding obligations of the Company, enforceable against the Company in accordance with the terms hereof and thereof.carry on its businesses as now conducted;
(b) The execution, delivery and performance of by the Company has of this Agreement and the other Transaction Documents to which it is a party do not entered into any agree- ment, is and will not engaged (a) conflict with or result in any discussionsbreach of, and has not authorized its representatives to engage in such discussions, with respect to any transaction (ib) that upon consummation would constitute a "Change default (with or without notice, lapse of Control" of time, or both) under, (c) result in a violation of, or (d) give any third party any right to accelerate any obligation under any contract to which the Company as defined in Section 6(g)is a party or by which any of its assets are bound or violate any provisions of any order, arbitration, award, law or regulation to which it is subject (ii) that is described in Section 6(g)(iiiincluding without limitation any securities laws) or (iii) that involves the purchase by conflict or result in any Person (as defined in Section 6(a)(i)) violation of its Articles of Association or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stock.Bylaws;
(c) Neither no filing, registration, qualification, notice, consent, approval or authorization to, with or from any Person (excluding Governmental Authorities) is necessary in connection with the execution and delivery by the Company of this Agreement nor or the other Transaction Documents to which it is a party, or the consummation by the Company of the transactions contemplated hereby will violate hereby, and no consent, approval or con- flict withauthorization of or designation, declaration or constitute a default under, or result in filing with any Governmental Authority on the creation or imposition of any Encumbrance upon any of the assets or properties part of the Company under is required in connection with the valid execution and delivery of this Agreement, or the offer, sale or issuance of the Shares, or the consummation of any other transaction contemplated hereby;
(id) this Agreement and the Company's Restated Certificate of Incorporation or bylaws, (ii) any agreement, judgment, order or other obligation Transaction Documents to which the Company is a party or have been duly executed and delivered by which it and constitute the valid and legally binding agreements of the Company, enforceable against it in accordance with the terms;
(e) the Company is boundhas an authorized capital of HK$1,250,000,000 consisting of 1,250,000,000 ordinary shares, or par value HK$1.00 per share, none of which has been issued at the date hereof;
(iiif) any law or regulation applicable to the Company has all requisite corporate power and authority to execute, deliver and perform this Agreement, and each other document or its assets or propertiesinstrument executed by it in connection herewith, except for such violationsand to consummate the transactions contemplated hereby. The execution, conflictsdelivery and performance of this Agreement and the issuance of the Subscription Shares, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not prevent, materially delay or materially adversely affect and the consummation of the transactions contemplated hereby, have been duly and validly authorized by this Agreement or all necessary action on the part of the Company;
(yg) will all authorizations, approvals and consents necessary to enable the Subscription Shares to be waived or otherwise released prior allotted and issued by the Company to the Closing as promptly as practicable Shareholders and/or their nominee(s) have been obtained;
(but h) upon the issuance of the Subscription Shares to Intelsat and TVB, each of the Subscription Shares shall be duly and validly issued and allotted in any event within 60 daysaccordance with the laws of Hong Kong, fully-paid and non-assessable, rank pari passu in all respects, and Intelsat and TVB shall own 51% and 49% of the issued Shares, respectively;
(i) following the date of Subscription Shares will on allotment and issue be free from all Liens;
(j) there is no agreement in effect (other than this Agreement.) which grants to any Person the right to call for the allotment, issue or transfer of any of the Shares or other securities of the Company, or which restricts the allotment, issuance or transfer of Shares or other securities;
(dk) The Company has taken not filed any voluntary petition in bankruptcy or been adjudicated a bankrupt or insolvent, filed any petition or answer seeking any reorganization, liquidation, dissolution or similar relief under any bankruptcy, insolvency, or other debtor relief law, or sought or consented to or acquiesced in the appointment of any trustee, receiver, conservator or liquidator of all necessary action to ensure that neither or any substantial part of its properties. No court of competent jurisdiction has entered an order, judgment or decree approving a petition filed against the entering into of this Agreement Company seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or the Registration Rights Agreement nor the consummation similar relief under any bankruptcy or insolvency law, or other debtor relief law, and no other liquidator has been appointed of the transactions contemplated hereby Company or thereby will of all or any substantial part of its properties.
(il) cause the preferred share purchase rights issued pursuant to the Rights Agreement, dated as of March 8, 1988, as amended, between the Company and First Chicago Trust Company shall provide each director with access to all materials, financial or otherwise, provided to other members of New York, as Rights Agent (the "Rights Agreement"), to become exercisable, (ii) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined in the Rights Agreement) or (iii) cause aBoard of Directors generally.
Appears in 1 contract
Samples: Subscription and Shareholders Agreement (Intelsat LTD)
The Company’s Representations and Warranties. The Company hereby acknowledges, agrees with and represents and warrants to Sellers each of the undersigned, as follows:
(a) The Company is a corporation duly incorpo- rated, validly existing and in good standing under has the laws of the State of Delaware. The Company has all requisite corporate power and authority to execute and deliver this Agreement and the Registration Rights Agreement and to consummate the trans- actions contemplated hereby and therebyperform its obligations hereunder. This Agreement and the Registration Rights Agreement have has been duly authorized, executed and delivered by the CompanyCompany and is valid, and, assuming the due execution here- of by each other party hereto binding and thereto, constitute the le- gal, valid and binding obligations of the Company, enforceable against the Company in accordance with the terms hereof and thereofits terms.
(b) The Company has not entered into any agree- mentShares to be issued to the undersigned pursuant to this Agreement, is not engaged when issued and delivered in any discussionsaccordance with the terms of this Agreement, will be duly and has not authorized its representatives to engage in such discussions, with respect to any transaction (i) that upon consummation would constitute a "Change of Control" of the Company as defined in Section 6(g), (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stockvalidly issued and will be fully paid and nonassessable.
(c) Neither the execution and delivery nor the performance of this Agreement by the Company will conflict with the Company’s Certificate of this Agreement nor the consummation by the Company Incorporation, as amended, or ByLaws, or result in a breach of the transactions contemplated hereby will violate any terms or con- flict withprovisions of, or constitute a default under, any material contract, agreement or result in the creation or imposition of any Encumbrance upon any of the assets or properties of the Company under (i) the Company's Restated Certificate of Incorporation or bylaws, (ii) any agreement, judgment, order or other obligation instrument to which the Company is a party or by which the Company is bound.
(d) After giving effect to the transactions contemplated by this Agreement and immediately after the Closing, the Company will have the outstanding capital stock as described in the Form S-4 Registration Statement.
(e) The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, the Form S-4 Registration Statement, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission (with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. There is no transaction, arrangement, or other relationship between the Company or any of its subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its Exchange Act filings and is not so disclosed. The Company has never been an issuer subject to Rule 144(i) under the Securities Act.
(f) Since the date of the latest audited financial statements included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in (i) a material adverse effect on the legality, validity or enforceability of this Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any law or regulation applicable to material respect on a timely basis its obligations under the Company or its assets or propertiesAgreement (any of (i), except for such violations, conflicts, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not prevent, materially delay or materially adversely affect the consummation of the transactions contemplated by this Agreement or (y) will be waived or otherwise released prior to the Closing as promptly as practicable (but in any event within 60 days) following the date of this Agreement.
(d) The Company has taken all necessary action to ensure that neither the entering into of this Agreement or the Registration Rights Agreement nor the consummation of the transactions contemplated hereby or thereby will (i) cause the preferred share purchase rights issued pursuant to the Rights Agreement, dated as of March 8, 1988, as amended, between the Company and First Chicago Trust Company of New York, as Rights Agent (the "Rights Agreement"), to become exercisablea “Material Adverse Effect”), (ii) cause the Company has not incurred any Seller liabilities (contingent or Seller Affiliate to become an "Acquiring Person" otherwise) other than (as defined A) trade payables and accrued expenses incurred in the Rights Agreementordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) cause athe Company has not altered its method of accounting, and (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock. The Company does not have pending before the Commission any request for confidential treatment of information. No event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made that has not been so disclosed.
(g) On or prior to the Closing, the Company shall promptly secure the listing of the Shares related to such Closing on the NASDAQ Capital Market (subject to official notice of issuance) (but in no event later than the applicable date of Closing).
Appears in 1 contract
The Company’s Representations and Warranties. The Company hereby represents and warrants to Sellers as followsthe Secured Party that:
(a) The Company is a corporation duly incorpo- ratedincorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to execute and deliver this Agreement and the Registration Rights Agreement and to consummate the trans- actions contemplated hereby and thereby. This Agreement and the Registration Rights Agreement have been duly executed and delivered by the Company, and, assuming the due execution here- of by each other party hereto and thereto, constitute the le- gal, valid and binding obligations of the Company, enforceable against the Company in accordance with the terms hereof and thereof.Nevada,
(b) The Company has not entered into any agree- ment, is not engaged in default under any discussionsindenture, and has not authorized its representatives mortgage, deed of trust, agreement or other instrument to engage in such discussions, with respect to any transaction (i) that upon consummation would constitute a "Change of Control" of which the Company as defined in Section 6(g), (ii) that is described in Section 6(g)(iii) or (iii) that involves a party Or by which the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stock.
(c) Company may be bound. Neither the execution and nor the delivery by of the Company of Note, this Agreement Security Agreement, nor the consummation by the Company of the transactions contemplated hereby herein contemplated, nor compliance with the provisions hereof, will violate any law or con- flict regulation, or any order or decree of any court of governmental authority, or will conflict with, or result in the breach of, or constitute a default under, any indenture, mortgage, deed or result in the creation or imposition of any Encumbrance upon any of the assets or properties of the Company under (i) the Company's Restated Certificate of Incorporation or bylawstrust, (ii) any agreement, judgment, order agreement or other obligation instrument to which the Company is a party or by which the Company is may be bound, or result in the creation or imposition of any Lien or claim upon any property of the Company.
(iiic) The Company has taken all action necessary to authorize the execution, delivery and performance of the Note, this Security Agreement and all other agreements and instruments necessary to complete the transactions contemplated by the Note and this Security Agreement, and has full power and authority to enter into such agreements and carry out the terms hereof without the consent of any law party except as disclosed in this Security Agreement. The Company's execution of this Security Agreement constitutes a valid binding and enforceable obligation enforceable in accordance with its terms.
(d) No authorization, approval, order, license, permit, franchise, or regulation applicable to Consent and no registration, declaration or filing by or with any governmental authority, and no consent of any third party, is required in connection with the execution and delivery by the Company or its assets or properties, except for such violations, conflicts, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not prevent, materially delay or materially adversely affect of this Security Agreement and the consummation of the transactions contemplated by this Agreement or (y) will be waived or otherwise released prior to the Closing as promptly as practicable (but in any event within 60 days) following the date of this Agreementhereby.
(de) The Company has taken will comply, in all necessary material respects, with all acts, rules, regulations, orders, decrees and directions of any governmental authority applicable to the Collateral or any part thereof or to the operation of the Company's business.
(f) There is no pending, or to the best knowledge of the Company, threatened action or proceeding affecting the Company before any Court, governmental agency or arbitrator, which would materially adversely affect the ability of the Company to ensure that neither perform its obligations under the entering into of Note or this Security Agreement or which may materially adversely affect the Registration Rights Agreement nor the consummation financial condition or operations of the transactions contemplated hereby Company.
(g) Except for the security interest granted pursuant to this Security Agreement, the Company is the sole owner of each item of the Collateral in which it purports to grant a security interest hereunder, having good and marketable title thereto, free and clear of any and all Liens.
(h) No effective security agreement, financing statement, equivalent security Or lien instrument or thereby will continuation covering all or any part of the Collateral is on file or of record in any public office which has not been terminated concurrently with the execution hereof.
(i) cause No default exists, and no event which with notice or the preferred share purchase rights issued pursuant passage of time, or both, would constitute a default under any Contract included in the Collateral by any party thereto, exists, and there are no offsets, claims or defenses against the obligations evidenced by the Collateral.
(j) No consent is required in order for the Company to grant the Lien given to the Rights Agreement, dated as of March 8, 1988, as amended, between the Company and First Chicago Trust Company of New York, as Rights Agent (the "Rights Agreement"), to become exercisable, (ii) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined in the Rights Agreement) or (iii) cause aSecured Party hereunder.
Appears in 1 contract
The Company’s Representations and Warranties. The Company hereby represents and warrants to Sellers each of the undersigned, as follows:
(a) The Company is a corporation duly incorpo- rated, validly existing and in good standing under has the laws of the State of Delaware. The Company has all requisite corporate power and authority to execute and deliver this Agreement and the Registration Rights Subscription Agreement and to consummate the trans- actions contemplated hereby and therebyperform its obligations hereunder. This Subscription Agreement and the Registration Rights Agreement have has been duly authorized, executed and delivered by the CompanyCompany and is valid, and, assuming the due execution here- of by each other party hereto binding and thereto, constitute the le- gal, valid and binding obligations of the Company, enforceable against the Company in accordance with the terms hereof and thereofits terms.
(b) The Company has not entered into any agree- mentSubscription Notes, is not engaged when issued and delivered in any discussionsaccordance with the terms of this Subscription Agreement, will be duly and has not authorized its representatives to engage in such discussions, with respect to any transaction (i) that upon consummation would constitute a "Change of Control" of the Company as defined in Section 6(g), (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stockvalidly issued and will be fully paid and non-assessable.
(c) The shares of Common Stock to be issued upon conversion of the Notes to be issued to the undersigned pursuant to this Agreement, when issued and delivered in accordance with this Subscription Agreement and the Notes will upon receipt by the Company of the applicable exercise price therefor, be validly issued and fully paid and non-assessable.
(d) Neither the execution and delivery nor the performance of this Subscription Agreement by the Company will conflict with the Company’s Certificate of this Agreement nor the consummation by the Company Incorporation or Bylaws, in each case, as amended to date, or result in a breach of the transactions contemplated hereby will violate any terms or con- flict withprovisions of, or constitute a default under, any material contract, agreement or result in the creation or imposition of any Encumbrance upon any of the assets or properties of the Company under (i) the Company's Restated Certificate of Incorporation or bylaws, (ii) any agreement, judgment, order or other obligation instrument to which the Company is a party or by which the Company is bound.
(e) The Company is currently in compliance, and has in the past complied, with all provisions of federal, state and other statutes, rules, regulations or (iii) any law or regulation laws applicable to the Company or its assets or propertiesCompany, except for any such violationsviolations which, conflictsindividually or in the aggregate, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not preventhave a material adverse effect. The execution, materially delay or materially adversely affect delivery and performance of the Subscription Agreement and the consummation of the transactions contemplated by this Agreement the Transaction Documents will not result in any violation of any provision of federal, state or (y) will be waived other statute, rule, regulation or otherwise released prior law applicable to the Closing as promptly as practicable (but in any event within 60 days) following the date of this AgreementCompany.
(d) The Company has taken all necessary action to ensure that neither the entering into of this Agreement or the Registration Rights Agreement nor the consummation of the transactions contemplated hereby or thereby will (i) cause the preferred share purchase rights issued pursuant to the Rights Agreement, dated as of March 8, 1988, as amended, between the Company and First Chicago Trust Company of New York, as Rights Agent (the "Rights Agreement"), to become exercisable, (ii) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined in the Rights Agreement) or (iii) cause a
Appears in 1 contract
Samples: Subscription Agreement
The Company’s Representations and Warranties. The Company hereby represents and warrants to Sellers as followseach Consenting Debentureholder (and the Company hereby acknowledges that each Consenting Debentureholder is relying upon such representations and warranties) that:
(a) The Company the Board has approved the Transaction;
(b) it is a corporation duly incorpo- ratedorganized, validly existing and in good standing under the laws Laws of the State jurisdiction of Delaware. The Company its organization, and it has all requisite corporate power and authority corporate capacity to execute and deliver enter into this Agreement and the Registration Rights Agreement to perform its obligations hereunder and to consummate the trans- actions transactions contemplated hereby and thereby. This Agreement and the Registration Rights Agreement have been duly executed and delivered by the Company, and, assuming the due execution here- of by each other party hereto and thereto, constitute the le- gal, valid and binding obligations of the Company, enforceable against the Company in accordance with the terms hereof and thereof.
(b) The Company has not entered into any agree- ment, is not engaged in any discussions, and has not authorized its representatives to engage in such discussions, with respect to any transaction (i) that upon consummation would constitute a "Change of Control" of the Company as defined in Section 6(g), (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stock.hereby;
(c) Neither the execution and delivery by the Company of this Agreement nor by it and satisfaction of the consummation by obligations hereunder, and the Company completion of the transactions contemplated hereby herein do not and will not, subject to obtaining all requisite approvals required in connection with the CBCA Plan, (i) violate or con- flict withconflict in any material respect with any Law applicable to it or any of its property or assets or (ii) result (with due notice or the passage of time or both) in a violation, conflict or breach of, or constitute a default under, or result require any consent to be obtained under its certificate of incorporation, articles, by-laws or other constating documents;
(d) assuming the due authorization, execution and delivery by the Consenting Debentureholders, this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, subject to laws of general application and bankruptcy, insolvency and other similar laws affecting creditors’ rights generally and general principles of equity;
(e) it (i) is a sophisticated party with sufficient knowledge and experience to properly evaluate the terms and conditions of this Agreement; (ii) has conducted its own analysis and made its own decision, in the creation exercise of its independent judgment, to enter into this Agreement; (iii) has obtained such independent advice in this regard as it deemed appropriate; and (iv) has not relied on the analysis or imposition the decision of any Encumbrance upon Person other than its own members, employees, representatives or independent advisors;
(f) to the best of its knowledge, after due inquiry, there is not now pending or threatened against it, nor has it received written notice in respect of, any claim, potential claim, litigation, action, suit, arbitration or other proceeding by or before any Governmental Entity, which would reasonably be expected to impair its ability to execute and deliver this Agreement and to comply with its terms;
(g) no Event of Default (as defined under the Convertible Debenture Indenture) has occurred or is continuing under the Convertible Debenture Indenture or the Convertible Debentures other than as may be contemplated by the terms of this Agreement;
(h) the financial statements issued by the Company on or after January 1, 2018, fairly reflect in all material respects as of the assets or properties dates thereof, the consolidated financial condition of the Company under (i) and the Company's Restated Certificate results of Incorporation or bylawsits operations for the periods covered thereby and have been prepared in accordance with IFRS and, (ii) any agreementsince November 1, judgment2018, order or other obligation to which there has been no material adverse change in the Company is a party or by which the Company is bound, or (iii) any law or regulation applicable to consolidated financial condition of the Company or its assets or properties, except for such violationsassets, conflicts, breaches, defaults condition or Encumbrances undertakings;
(i) it has complied with its public reporting obligations under clauses applicable securities Laws in all material respects and all documents filed by the Company with the relevant securities regulators: (i) complied with all applicable securities Laws in all material respects; and (ii) did not contain any untrue statement of a material fact or (iii) which (x) would not preventomit to state a material fact required to be stated therein or necessary to make the statements therein, materially delay or materially adversely affect the consummation in light of the transactions contemplated by this Agreement circumstances under which they were made, not misleading;
(j) it is authorized to issue an unlimited number of common shares and 95,978,621 preferred shares, of which 80,909,225 common shares as of the date hereof and 0 preferred shares are issued and outstanding, and it has no other capital stock authorized or issued and outstanding, other than no more than 1,140,704 restricted share units, 763,075 performance share units, 821,954 deferred share units and 952,532 stock options outstanding and unvested warrants exercisable for 3,088,205 common shares; and, other than the foregoing, there are no other outstanding options, warrants, convertible securities (yother than the Convertible Debentures) will be waived or rights of any kind to purchase or otherwise released prior acquire capital stock or other securities of the Company; and
(k) except as disclosed in the Information, no order halting or suspending trading in securities of the Company or prohibiting the sale of such securities has been issued to and is outstanding against the Company, and to the Closing as promptly as practicable (but in any event within 60 days) following the date best of this Agreementits knowledge, after due inquiry, no investigations or proceedings for such purpose are pending or threatened.
(d) The Company has taken all necessary action to ensure that neither the entering into of this Agreement or the Registration Rights Agreement nor the consummation of the transactions contemplated hereby or thereby will (i) cause the preferred share purchase rights issued pursuant to the Rights Agreement, dated as of March 8, 1988, as amended, between the Company and First Chicago Trust Company of New York, as Rights Agent (the "Rights Agreement"), to become exercisable, (ii) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined in the Rights Agreement) or (iii) cause a
Appears in 1 contract
Samples: Consent and Support Agreement (Bellatrix Exploration Ltd.)
The Company’s Representations and Warranties. The Company hereby represents and warrants to Sellers as followsthe Secured Party that:
(a) The Company is a corporation duly incorpo- ratedincorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to execute and deliver this Agreement and the Registration Rights Agreement and to consummate the trans- actions contemplated hereby and thereby. This Agreement and the Registration Rights Agreement have been duly executed and delivered by the Company, and, assuming the due execution here- of by each other party hereto and thereto, constitute the le- gal, valid and binding obligations of the Company, enforceable against the Company in accordance with the terms hereof and thereofNevada.
(b) The Company has not entered into any agree- ment, is not engaged in default under any discussionsindenture, and has not authorized its representatives to engage in such discussionsmortgage, with respect to any transaction (i) that upon consummation would constitute a "Change deed of Control" of the Company as defined in Section 6(g)trust, (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stock.
(c) Neither the execution and delivery by the Company of this Agreement nor the consummation by the Company of the transactions contemplated hereby will violate or con- flict with, or constitute a default under, or result in the creation or imposition of any Encumbrance upon any of the assets or properties of the Company under (i) the Company's Restated Certificate of Incorporation or bylaws, (ii) any agreement, judgment, order agreement or other obligation instrument to which the Company is a party or by which the Company may be bound. Neither the execution nor the delivery of the Note, this Security Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will violate any law or regulation, or any order or decree of any court of governmental authority, or will conflict with, or result in the breach of, or constitute a default under, any indenture, mortgage, deed or trust, agreement or other instrument to which the Company is a party or by which the Company may be bound, or result in the creation or imposition of any Lien or claim upon any property of the Company.
(iiic) The Company has taken all action necessary to authorize the execution, delivery and performance of the Note, this Security Agreement and all other agreements and instruments necessary to complete the transactions contemplated by the Note and this Security Agreement, and has full power and authority to enter into such agreements and carry out the terms hereof without the consent of any law party except as disclosed in this Security Agreement. The Companys execution of this Security Agreement constitutes a valid binding and enforceable obligation enforceable in accordance with its terms.
(d) No authorization, approval, order, license, permit, franchise, or regulation applicable to consent and no registration, declaration or filing by or with any governmental authority, and no consent of any third party, is required in connection with the execution and delivery by the Company or its assets or properties, except for such violations, conflicts, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not prevent, materially delay or materially adversely affect of this Security Agreement and the consummation of the transactions contemplated by this Agreement or (y) will be waived or otherwise released prior to the Closing as promptly as practicable (but in any event within 60 days) following the date of this Agreementhereby.
(de) The Company has taken will comply, in all necessary material respects, with all acts, rules, regulations, orders, decrees and directions of any governmental authority applicable to the Collateral or any part thereof or to the operation of the Companys business.
(f) There is no pending, or to the best knowledge of the Company, threatened action or proceeding affecting the Company before any court, governmental agency or arbitrator, which would materially adversely affect the ability of the Company to ensure that neither perform its obligations under the entering into of Note or this Security Agreement or which may materially adversely affect the Registration Rights Agreement nor the consummation financial condition or operations of the transactions contemplated hereby Company.
(g) Except for the security interest granted pursuant to this Security Agreement, the Company is the sole owner of each item of the Collateral in which it purports to grant i security interest hereunder, having good and marketable title thereto, free and clear of any and all Liens.
(h) No effective security agreement, financing statement, equivalent security or thereby will lien instrument or continuation covering all or any part of the Collateral is on file or of record in any public office which has not been terminated concurrently with the execution hereof.
(i) cause No default exists, and no event which with notice or the preferred share purchase rights issued pursuant passage of time, or both, would constitute a default under any Contract included in the Collateral by any party thereto, exists, and there are no offsets, claims or defenses against the obligations evidenced by the Collateral.
(j) No consent is required in order for the Company to grant the Lien given to the Rights Agreement, dated as of March 8, 1988, as amended, between the Company and First Chicago Trust Company of New York, as Rights Agent (the "Rights Agreement"), to become exercisable, (ii) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined in the Rights Agreement) or (iii) cause aSecured Party hereunder.
Appears in 1 contract
The Company’s Representations and Warranties. The Company and each Company Subsidiary hereby represents and warrants to Sellers as followseach Consenting Noteholder (and the Company and each Company Subsidiary hereby acknowledges that each Consenting Noteholder is relying upon such representations and warranties) that:
(a) The Company the Board has approved the Transaction;
(b) it is a corporation duly incorpo- ratedorganized, validly existing and in good standing under the laws Laws of the State jurisdiction of Delaware. The Company its organization, and it has all requisite corporate power and authority corporate capacity to execute and deliver enter into this Agreement and the Registration Rights Agreement to perform its obligations hereunder and to consummate the trans- actions transactions contemplated hereby and thereby. This Agreement and the Registration Rights Agreement have been duly executed and delivered by the Company, and, assuming the due execution here- of by each other party hereto and thereto, constitute the le- gal, valid and binding obligations of the Company, enforceable against the Company in accordance with the terms hereof and thereof.
(b) The Company has not entered into any agree- ment, is not engaged in any discussions, and has not authorized its representatives to engage in such discussions, with respect to any transaction (i) that upon consummation would constitute a "Change of Control" of the Company as defined in Section 6(g), (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stock.hereby;
(c) Neither the execution and delivery by the Company of this Agreement nor by it and satisfaction of the consummation by obligations hereunder, and the Company completion of the transactions contemplated hereby herein do not and will not, subject to obtaining all requisite approvals required in connection with the CBCA Plan and approval of the TSX: (i) violate or con- flict withconflict in any material respect with any Law applicable to it or any of its property or assets; or (ii) result (with due notice or the passage of time or both) in a violation, conflict or breach of, or constitute a default under, or result in the creation or imposition require any consent to be obtained under its certificate of any Encumbrance upon any of the assets or properties of the Company under (i) the Company's Restated Certificate of Incorporation or bylawsincorporation, (ii) any agreementarticles, judgment, order by-laws or other obligation to which the Company is a party organizational or by which the Company is bound, or (iii) any law or regulation applicable to the Company or its assets or properties, except for such violations, conflicts, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not prevent, materially delay or materially adversely affect the consummation of the transactions contemplated by this Agreement or (y) will be waived or otherwise released prior to the Closing as promptly as practicable (but in any event within 60 days) following the date of this Agreement.similar documents;
(d) The Company has taken all necessary action to ensure that neither assuming the entering into of due authorization, execution and delivery by the Consenting Noteholders, this Agreement or the Registration Rights Agreement nor the consummation constitutes a legal, valid and binding obligation of the transactions contemplated hereby or thereby will Company, enforceable in accordance with its terms, subject to laws of general application and bankruptcy, insolvency and other similar laws affecting creditors' rights generally and general principles of equity;
(e) it: (i) cause is a sophisticated party with sufficient knowledge and experience to properly evaluate the preferred share purchase rights issued pursuant to the Rights terms and conditions of this Agreement, dated as of March 8, 1988, as amended, between the Company and First Chicago Trust Company of New York, as Rights Agent (the "Rights Agreement"), to become exercisable, ; (ii) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined has conducted its own analysis and made its own decision, in the Rights exercise of its independent judgment, to enter into this Agreement) or (iii) cause a;
Appears in 1 contract
Samples: Noteholder Support Agreement
The Company’s Representations and Warranties. The Company represents and warrants to Sellers as followsthe Subscriber that:
(a) The that the Company is a corporation company duly incorpo- rated, validly existing and in good standing incorporated under the laws of the State of Delaware. The Company Delaware and it has all requisite corporate full power and authority to conduct its business and the Company has the power and capacity to execute and deliver and comply with the provisions of this Agreement and has taken all necessary corporate and other action to authorize the Registration Rights Agreement execution, delivery and to consummate the trans- actions contemplated hereby and thereby. This Agreement and the Registration Rights Agreement have been duly executed and delivered by the Company, and, assuming the due execution here- performance of by each other party hereto and thereto, constitute the le- gal, valid and binding obligations of the Company, enforceable against the Company in accordance with the terms hereof and thereof.this Agreement;
(b) The Company has not entered into any agree- ment, is not engaged in any discussions, and has not authorized its representatives to engage in such discussions, with respect to any transaction (i) that upon consummation would constitute a "Change of Control" of the Company as defined in Section 6(g), (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stock.
(c) Neither the execution and delivery by or on behalf of the Company of this Agreement nor and the consummation issue by the Company of the transactions contemplated hereby Shares do not and will not violate any U.S. SEC and stock exchange rules and any other applicable law or con- flict withregulation and are not and will not be contrary to the provisions of the [Memorandum and Articles of Association of the Company] and will not violate any terms of, or constitute a default under, any instrument or result in the creation or imposition of any Encumbrance upon any of the assets or properties of the Company under (i) the Company's Restated Certificate of Incorporation or bylaws, (ii) any agreement, judgment, order or other obligation agreement to which the Company is a party or by which it or its property is bound;
(c) that all consents, clearances, approvals, authorizations and orders of any court, government department or other regulatory body in the U.S, or elsewhere and all corporate consents, approvals and authorizations required by the U.S. SEC, relevant stock exchanges, existing shareholders of the Company is bound, or (iii) any law or regulation applicable to and the Company for or its assets or properties, except for such violations, conflicts, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not prevent, materially delay or materially adversely affect in connection with the consummation execution and delivery of this Agreement and the allotment and issue of the transactions contemplated by this Agreement or (y) Shares have been obtained and will be waived or otherwise released prior to the Closing as promptly as practicable (but remain in any event within 60 days) following the date of this Agreement.full force and effect;
(d) The that the Company has taken shall take all necessary action actions in order to ensure comply with the terms and conditions of Rule 144, to be taken on its part, in order to make certain that neither the entering into exemption from registration under Rule 144 and sales by subscriber pursuant thereto, at the time that the holding period and legend limitations expire and for a period of this Agreement or the Registration Rights Agreement nor the consummation 2 years thereafter, will be available to Subscriber for purposes of its resale of the transactions contemplated hereby or thereby will (i) cause Securities there under, including but not limited to making certain that adequate information concerning the preferred share purchase rights issued pursuant Company is then available to the Rights Agreement, dated as of March 8, 1988, as amended, between public and any other conditions that the Company and First Chicago Trust Company of New York, as Rights Agent (the "Rights Agreement"), would be required to become exercisable, (ii) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined perform in the Rights Agreement) or (iii) cause acompliance therewith.
Appears in 1 contract
The Company’s Representations and Warranties. The Company hereby acknowledges, agrees with and represents and warrants to Sellers each of the undersigned, as follows:
(a) The Company is a corporation duly incorpo- rated, validly existing and in good standing under has the laws of the State of Delaware. The Company has all requisite corporate power and authority to execute and deliver this Agreement and the Registration Rights Agreement and to consummate the trans- actions contemplated hereby and therebyperform its obligations hereunder. This Agreement and the Registration Rights Agreement have has been duly authorized, executed and delivered by the CompanyCompany and is valid, and, assuming the due execution here- of by each other party hereto binding and thereto, constitute the le- gal, valid and binding obligations of the Company, enforceable against the Company in accordance with the terms hereof and thereofits terms.
(b) The Company has not entered into any agree- mentSecurities to be issued to the undersigned pursuant to this Agreement, is not engaged when issued and delivered in any discussionsaccordance with the terms of this Agreement, will be duly and has not authorized its representatives to engage in such discussions, with respect to any transaction (i) that upon consummation would constitute a "Change of Control" of the Company as defined in Section 6(g), (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stockvalidly issued and will be fully paid and non-assessable.
(c) The shares of Common Stock to be issued upon exercise of the Warrants to be issued to the undersigned pursuant to this Agreement, when issued and delivered in accordance with this Agreement and the Warrants, will, upon receipt by the Company of the applicable exercise price therefor, be validly issued and fully paid and nonassessable.
(d) Neither the execution and delivery nor the performance of this Agreement by the Company will conflict with the Company’s Articles of this Agreement nor the consummation by the Company Incorporation or By-laws, as amended to date, or result in a breach of the transactions contemplated hereby will violate any terms or con- flict withprovisions of, or constitute a default under, any material contract, agreement or result in the creation or imposition of any Encumbrance upon any of the assets or properties of the Company under (i) the Company's Restated Certificate of Incorporation or bylaws, (ii) any agreement, judgment, order or other obligation instrument to which the Company is a party or by which the Company is bound, or .
(iiie) any law or regulation applicable After giving effect to the Company or its assets or properties, except for such violations, conflicts, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not prevent, materially delay or materially adversely affect the consummation of the transactions contemplated by this Agreement or (y) and immediately after the Closing, the Company will be waived or otherwise released prior to have the Closing outstanding capital stock as promptly as practicable (but described in any event within 60 days) following the date of this AgreementMemorandum.
(df) The Company has taken information contained in the Memorandum is true and correct in all necessary action to ensure that neither the entering into of this Agreement or the Registration Rights Agreement nor the consummation of the transactions contemplated hereby or thereby will (i) cause the preferred share purchase rights issued pursuant to the Rights Agreement, dated material respects as of March 8, 1988, as amended, between the Company and First Chicago Trust Company of New York, as Rights Agent (the "Rights Agreement"), to become exercisable, (ii) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined in the Rights Agreement) or (iii) cause aits date.
Appears in 1 contract
The Company’s Representations and Warranties. The Company represents and warrants to Sellers CVC as follows:
(a) Section 3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION OF AND AUTHORIZATION BY THE COMPANY AND SUBSIDIARIES. The Company is a corporation duly incorpo- ratedorganized, validly existing and in good standing under the laws of the State of Delaware. Each of the Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation. True and complete copies of the certificate of incorporation and the by-laws of the Company and each of the Subsidiaries, each as in effect on the date of this Agreement, have been delivered to CVC. The Company and each of the Subsidiaries has all requisite corporate power to own its properties and to carry on its business as now being conducted and as proposed to be conducted. The Company and each of the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the failure of the Company or such Subsidiary to be so qualified would have a material adverse effect on the business, assets, operations, operating results or condition, financial or otherwise, of the Company. The Company has full power, authority and legal right to execute and deliver this Agreement and to issue, sell and deliver the Registration Rights Agreement Series B Shares, to perform its obligations hereunder, and to consummate engage in the trans- actions transactions contemplated hereby hereby. The execution, delivery and thereby. This performance of this Agreement and the Registration Rights Agreement have been duly executed and delivered by the Company, andand the consummation by the Company of the transactions contemplated hereby, assuming have been duly authorized by all necessary corporate action on the due execution here- part of by each other party hereto and thereto, constitute the le- galCompany. This Agreement constitutes the legal, valid and binding obligations obligation of the Company, enforceable against the Company in accordance with its terms, except to the terms hereof extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and thereof.
(b) The Company has not entered into any agree- ment, is not engaged in any discussionsother similar laws affecting the enforcement of creditors’ rights generally, and has not authorized its representatives to engage in such discussions, with respect to any transaction (i) that upon consummation would constitute a "Change of Control" of the Company as defined in Section 6(g), (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stockgeneral equitable principles.
(c) Neither the execution and delivery by the Company of this Agreement nor the consummation by the Company of the transactions contemplated hereby will violate or con- flict with, or constitute a default under, or result in the creation or imposition of any Encumbrance upon any of the assets or properties of the Company under (i) the Company's Restated Certificate of Incorporation or bylaws, (ii) any agreement, judgment, order or other obligation to which the Company is a party or by which the Company is bound, or (iii) any law or regulation applicable to the Company or its assets or properties, except for such violations, conflicts, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not prevent, materially delay or materially adversely affect the consummation of the transactions contemplated by this Agreement or (y) will be waived or otherwise released prior to the Closing as promptly as practicable (but in any event within 60 days) following the date of this Agreement.
(d) The Company has taken all necessary action to ensure that neither the entering into of this Agreement or the Registration Rights Agreement nor the consummation of the transactions contemplated hereby or thereby will (i) cause the preferred share purchase rights issued pursuant to the Rights Agreement, dated as of March 8, 1988, as amended, between the Company and First Chicago Trust Company of New York, as Rights Agent (the "Rights Agreement"), to become exercisable, (ii) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined in the Rights Agreement) or (iii) cause a
Appears in 1 contract
Samples: Recapitalization Agreement (Talon International, Inc.)
The Company’s Representations and Warranties. The Company represents hereby makes the representations, warranties and warrants undertakings to Sellers as followsthe Investor that the following expressions are true and accurate and not misleading in all aspects at the date hereof:
(a) The Company is a corporation duly incorpo- rated, validly existing was established and in good standing effectively subsists under the laws of the State place of Delaware. establishment thereof;
(b) The Company has all requisite corporate power and authority rights to execute the Agreement, can exercise its rights and fulfil its obligations hereunder, and has taken all corporate actions to conclude and deliver this the Agreement and fully fulfil its obligations and complete the Registration Rights Agreement and to consummate the trans- actions transaction contemplated hereby and thereby. This Agreement and the Registration Rights Agreement have been duly hereunder;
(c) After being formally authorized, executed and delivered by the Company, andthe Agreement shall constitute an agreement effective for and bonding upon the Company and be compulsorily enforceable for the Company according to clauses hereof, assuming but shall be subject to bankruptcy matters;
(d) As for the due execution here- of by each other party hereto execution, delivery and thereto, constitute the le- gal, valid and binding obligations performance of the CompanyAgreement, enforceable against the Company in accordance with the terms hereof does and thereof.
(b) The Company has will not entered into any agree- ment, is not engaged in any discussions, and has not authorized its representatives to engage in such discussions, with respect to any transaction (i) that upon consummation would constitute a "Change be required to obtain the consent or approval of Control" of the Company as defined in Section 6(g), any competent governmental authority or any third party; (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stock.
(c) Neither the execution and delivery by the Company of this Agreement nor the consummation by the Company of the transactions contemplated hereby will violate or con- flict with, or constitute a default under, or result in the creation or imposition of any Encumbrance upon any of the assets or properties of the Company under following provisions in any material respect: (i) the Company's Restated Certificate of Incorporation or bylaws, (iiA) any agreement, judgment, applicable laws or regulations or any order or other obligation decree of any governmental authority validating at the date hereof, or (B) any constitutional document; or (C) any agreement to which the Company is a party or by which the Company is bound, or (iii) any law or regulation applicable to constraints the Company or its any assets or properties, except for such violations, conflicts, breaches, defaults or Encumbrances under clauses thereof;
(iie) or (iii) which (x) would not prevent, materially delay or materially adversely affect Convertible Bonds will obtain the consummation legal authorization of the transactions contemplated by this Company at the time of issue, and will constitute direct, common, non-subordinated, unconditional and unsecured debt repayment obligations of the Company at the time of issue and delivery according to the Agreement or and relevant terms and conditions, and such obligations have the equal sequence of rights and interests and do not have any privilege;
(yf) Converted shares will be waived or ordinary shares with the consideration fully paid at the time of issue and no taxes able to be levied, be allotted and issued properly and legally, and have the equal sequence of rights and interests with existing ordinary shares in all aspects. Save as otherwise released prior to stipulated by applicable laws, converted shares shall not have any claim, mortgage, charge, easement, encumbrance, lease, covenant, mortgage right, right of lien and pledge at the Closing as promptly as practicable (but in any event within 60 days) following the date time of this Agreement.issue; and Convertible Bond Subscription Agreement 9
(dg) The Company has taken Other representations and warranties made by all necessary action to ensure that neither the entering into of this Agreement or the Registration Rights Agreement nor the consummation of the transactions contemplated hereby or thereby will warrantors (iexcept Forest, Matrix, Sequoia and Qualcomm) cause the preferred share purchase rights issued pursuant to the Rights Agreement, dated as of March 8, 1988, as amended, between the Company and First Chicago Trust Company of New York, as Rights Agent (the "Rights Agreement"), to become exercisable, (ii) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined in the Rights Investment Agreement) or (iii) cause aspecified in Appendix IV to the Investment Agreement. For the purpose of this paragraph, such representations and warranties shall constitute a part hereof, just as they are specified hereunder.
Appears in 1 contract
Samples: Convertible Bond Subscription Agreement (Changyou.com LTD)
The Company’s Representations and Warranties. The Company -------------------------------------------- represents and warrants to Sellers as followsthe Initial Purchaser the following:
(a) The Preliminary Memorandum, at the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Final Memorandum, at the date hereof, does not and at the Closing Date will not (and any amendment or supplement thereto, at the date thereof and at the Closing Date, will not), contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, -------- however, that the Company makes no representation or warranty as to any ------- statements made in or omissions from the Preliminary Memorandum or the Final Memorandum (or any amendment or supplement thereto) in reliance upon and in conformity with information relating to the Initial Purchaser furnished to the Company in writing by the Initial Purchaser, expressly for use therein.
(b) No holder of securities of the Company (other than holders of the Notes) will be entitled to have such securities registered under any registration statement required to be filed by the Company pursuant to the Registration Rights Agreement.
(c) None of the Company or any of its Affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act ("Regulation D")), nor any person acting on its or their behalf (other than the Initial Purchaser or any of its Affiliates, as to whom the Company makes no representation or warranty) has, directly or indirectly:
(i) made offers or sales of any security, or solicited offers to buy any security, which is or will be integrated with the sale of the Notes in a manner that would require the registration of the Notes under the Securities Act;
(ii) engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Notes;
(iii) taken any action designed to cause or result in, or that has constituted or that might reasonably be expected to constitute, stabilization or manipulation of the price of the Notes;
(iv) paid or agreed to pay to any person any compensation for soliciting another to purchase any of the Notes;
(v) engaged in any directed selling efforts (as that term is defined in Regulation S under the Securities Act ("Regulation S")) with respect to the Notes, and each of the Company and its Affiliates and any person acting on its or their behalf (other than the Initial Purchaser or any of its Affiliates, as to whom the Company makes no representation) has complied with the offering restrictions requirement of Rule 903 under Regulation S.
(d) The Notes satisfy the eligibility requirements of Rule 144A(d)(3) under the Securities Act.
(e) Each of the Company and BGF Overseas, Inc., a company organized under the laws of the United States Virgin Islands (the "Subsidiary"), is a corporation duly incorpo- rated, validly organized and existing and in good standing under the laws of its jurisdiction of incorporation. Each of the State of Delaware. The Company and the Subsidiary has all requisite the corporate power and authority to execute own and deliver operate its properties and to carry on its business as now conducted and as proposed to be conducted and is duly qualified as a foreign corporation and in good standing under the laws of all jurisdictions in which it is doing business, except where the failure to be so qualified or in good standing, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
(f) The Subsidiary is the only subsidiary of the Company in existence on the date of this Agreement and is not a "significant subsidiary" of the Registration Rights Agreement Company within the meaning of Rule 1-02 of Regulation S-X under the Securities Act. The capital stock of the Subsidiary is duly authorized, validly issued, fully paid and to consummate nonassessable. All of the trans- actions contemplated hereby and thereby. This Agreement and outstanding shares of capital stock of the Registration Rights Agreement have been duly executed and delivered Subsidiary are beneficially owned directly by the Company, andfree and clear of any perfected security interest or any other security interests, assuming claims, liens or encumbrances other than liens granted pursuant to the due execution here- Senior Secured Credit Agreement, dated as of by September 30, 1998, among the Company, the lenders named therein and First Union National Bank, as agent (the "Bank Facility").
(g) All of the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable.
(h) The Company has the corporate power and requisite authority to execute, deliver and perform its obligations under the Transaction Documents.
(i) Each of the Transaction Documents and each other party hereto document or instrument to be delivered in connection therewith has been, duly authorized by all necessary corporate action of the Company; each of the Transaction Documents and theretoeach other document or instrument to be delivered in connection herewith or therewith to be executed and delivered on or prior to the date hereof is, constitute and each of the le- galTransaction Documents and each other document or instrument to be delivered in connection herewith or therewith to be executed and delivered after the Closing Date, will be, upon such execution and delivery, the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or similar laws affecting the enforcement of creditors' rights generally ("Bankruptcy Law") or by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) ("Equity").
(j) The execution, delivery and performance of the Transaction Documents and each other document and instrument to be executed, delivered or performed by the Company in connection therewith, the consummation of the transactions herein and therein contemplated, the compliance with each of the terms hereof and or thereof.
(b) The Company has not entered into any agree- ment, is not engaged in any discussions, and has the issuance, delivery and performance of the Notes do not authorized its representatives to engage in such discussions, with respect to any transaction and on the Closing Date will not (i) that upon consummation would constitute a violate any statute, law, rule, regulation, order, judgment or decree (singly "Change of ControlLaw" of and collectively "Laws") applicable to the Company as defined in Section 6(g)or the Subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Subsidiary or any of its or their properties (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stock.
(c) Neither the execution and delivery by the Company of this Agreement nor the consummation by the Company of the transactions contemplated hereby will violate or con- flict conflict with, result in a breach or violation of or constitute a default under, under the certificate of incorporation or result in the creation or imposition of any Encumbrance upon any of the assets or properties bylaws of the Company under (i) or the Company's Restated Certificate Subsidiary or any indenture, mortgage, deed of Incorporation or bylawstrust, (ii) any contract, undertaking, loan agreement, judgment, order lease or other obligation agreement or instrument to which the Company or the Subsidiary is a party or by which the Company is boundor the Subsidiary or any of their respective properties are bound ("Contracts"), or (iii) result in or require the creation or imposition of any law mortgage, pledge, assignment, security interest, charge or regulation applicable encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing ("Lien"), upon any of the properties or assets of the Company or its assets or properties, except for such violations, conflicts, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not prevent, materially delay or materially adversely affect the consummation of the transactions contemplated by this Agreement or (y) will be waived or otherwise released prior to the Closing as promptly as practicable (but in any event within 60 days) following the date of this AgreementSubsidiary.
(dk) The No consent, approval, authorization or order of any Tribunal or other person is required in connection with the execution, delivery and performance by the Company has taken all necessary action of the Transaction Documents or any other document or instrument to ensure that neither be delivered, executed or performed by the entering into of this Agreement Company or the Registration Rights Agreement nor Subsidiary in connection therewith or the consummation of the transactions contemplated hereby or thereby will thereby, other than any such consent, approval, authorization or order which has been obtained and remains in full force and effect or which has been waived in writing by the Initial Purchaser or such as may be required under applicable state securities or Blue Sky laws.
(l) The audited financial statements (including the notes thereto) of the Company included in the Final Memorandum comply as to form in all material respects with the requirements applicable to registration statements on Form S-1 under the Securities Act and fairly present in all material respects the financial position of the Company and the results of operations and cash flow of the Company as of the dates and for the periods therein specified. Such financial statements have been prepared in accordance with generally accepted accounting principles ("GAAP") consistently applied throughout the periods involved. Since the date of the most recent financial statements included in the Final Memorandum, except as described therein and in the notes thereto or in the Final Memorandum, (i) cause the preferred share purchase rights issued pursuant to the Rights Agreement, dated as of March 8, 1988, as amended, between neither the Company and First Chicago Trust Company of New Yorknor the Subsidiary has incurred any liabilities or obligations, as Rights Agent direct or contingent, or entered into or agreed to enter into any transactions or Contracts (written or oral) which liabilities, obligations, transactions or Contracts would, individually or in the "Rights Agreement")aggregate, to become exercisablehave a Material Adverse Effect, (ii) cause the Company has not purchased any Seller of its outstanding capital stock, nor declared, paid or Seller Affiliate to become an "Acquiring Person" otherwise made any dividend or distribution of any kind on its capital stock, (as defined iii) there has not been any material change in the Rights Agreementlong-term indebtedness of the Company or the Subsidiary and (iv) none of the material assets of either the Company or the Subsidiary have materially diminished in value ordinary wear and tear excepted.
(m) Each of the Company and the Subsidiary maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and
(iv) the recorded accountability for inventory assets is compared with the existing inventory assets at reasonable intervals and appropriate action is taken with respect to any differences.
(n) Upon giving effect to the issue and sale of the Notes as contemplated herein and the application of the net proceeds thereof as contemplated in the Final Memorandum:
(i) The fair saleable value of the assets of the Company and the Subsidiary, on a stand-alone basis, exceeds the amount that will be required to be paid on or in respect of the existing debts and other liabilities (including contingent liabilities) of the Company and the Subsidiary as they mature.
(ii) The assets of each of the Company and the Subsidiary, on a stand-alone basis, do not constitute unreasonably small capital to carry out its business as now conducted and as proposed to be conducted, including its capital needs, taking into account the particular capital requirements of the business conducted by each of the Company and the Subsidiary.
(iii) The Company does not intend to, and will not permit the Subsidiary to, incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of debt of each of the Company and the Subsidiary).
(o) Each of the Company and the Subsidiary owns, leases or has sufficient rights to use, and after consummation of the issue and sale of the Notes as contemplated herein, will own, lease or have sufficient rights to use, such properties and assets as are necessary to the conduct of its operations as presently conducted and as contemplated to be conducted immediately following consummation of the issue and sale of the Notes as contemplated herein, and neither the Company nor the Subsidiary and, to the knowledge of the Company, any other party thereto, is in default under any lease, except in each case for such defects or defaults that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. None of the material assets of either the Company or the Subsidiary is subject to any restriction which would prevent continuation of the use currently made, or contemplated to be made, thereof or which would materially adversely affect the value thereof.
(p) Neither the Company nor the Subsidiary is (i) in violation of its charter, bylaws or other organizational documents, (ii) in breach or violation of any Laws or (iii) in breach of or default under (nor has any event occurred which, with notice or the lapse of time or both, would constitute a default under) or in violation of any of the terms or provisions of any Contract, except for any such breach, default, violation or event in each case of (i), (ii) or (iii) cause which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(q) There is no action, suit, proceeding, claim, lawsuit and/or investigation conducted by or before any Tribunal ("Litigation") pending or, to the best knowledge of the Company after due investigation, threatened, by, against, or which may relate to or affect (a) any benefit plan or any fiduciary or administrator thereof, (b) the Transactions or (c) either of the Company or the Subsidiary which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. There are no outstanding injunctions or restraining orders prohibiting consummation of the Transactions or any other transactions contemplated in connection therewith. Neither the Company nor the Subsidiary is in default with respect to any judgment, order, writ, injunction or decree of any Tribunal, and there are no unsatisfied judgments against either the Company or the Subsidiary or their respective businesses or properties which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. Neither the Company nor the Subsidiary has been advised that there is a reasonable likelihood of an adverse determination of any Litigation which adverse determination, should it occur, could reasonably be expected to have a Material Adverse Effect.
(r) The proceeds from the issuance and sale of the Notes will be used solely for the purposes specified in the Final Memorandum. None of the issuance or sale of the Notes, the application of the proceeds therefrom, or the consummation of Transactions or any of the other transactions contemplated thereby will violate Regulations T, U, or X of the Board of Governors of the Federal Reserve System.
(s) All material Tax Returns, foreign and domestic, required to be filed by or on behalf of the Company and the Subsidiary in any jurisdiction have been filed, and all material Taxes (whether or not actually shown on such Tax Returns) for which they are directly, or indirectly as a member of a consolidated group, liable have been paid other than any Tax (i) the validity or amount of which is being contested in good faith, (ii) for which adequate reserve, or other appropriate provision, if any, as required in conformity with GAAP shall have been made, and (iii) with respect to which any right to execute upon or sell any assets of the Company or of the Subsidiary has not matured or has been and continues to be effectively enjoined, superseded or stayed ("Contested Claims"); all such Tax Returns are true, correct and complete in all material respects. To the knowledge of the Company, there is no material proposed tax assessment with respect to Taxes due by, or on behalf of, the Company or the Subsidiary except for Contested Claims. As used herein, the following terms shall have the respective meaning ascribed to each below:
Appears in 1 contract
The Company’s Representations and Warranties. The Company hereby represents and warrants to Sellers each Supporting Noteholder (and the Company acknowledges that the Supporting Noteholders are relying upon such representations and warranties) that as followsof the date hereof:
(a) The Company this Support Agreement has been duly authorized, executed and delivered by it, and, assuming the due authorization, execution and delivery by all Parties, this Support Agreement constitutes a legal, valid and binding obligation of it, enforceable in accordance with its terms, subject to laws of general application and bankruptcy, insolvency and other similar laws affecting creditors’ rights generally and general principles of equity;
(b) it is a corporation duly incorpo- rated, organized and validly existing and in good standing under the laws of the State jurisdiction of Delaware. The Company its incorporation and has all requisite corporate necessary power and authority to execute and deliver this Support Agreement and the Registration Rights Agreement resulting from its acceptance hereof and to consummate the trans- actions contemplated hereby and thereby. This Agreement and the Registration Rights Agreement have been duly executed and delivered by the Company, and, assuming the due execution here- of by each other party hereto and thereto, constitute the le- gal, valid and binding perform its obligations of the Company, enforceable against the Company in accordance with the terms hereof and thereof.
(b) The Company has not entered into any agree- ment, is not engaged in any discussions, and has not authorized its representatives to engage in such discussions, with respect to any transaction (i) that upon consummation would constitute a "Change of Control" of the Company as defined in Section 6(g), (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stock.hereunder;
(c) Neither the execution and delivery by the Company of this Support Agreement nor by it and the consummation completion by the Company it of the transactions contemplated hereby herein do not and will not, to the best of its knowledge, violate or con- flict withconflict with any judgment, order, notice, decree, statute, law, ordinance, rule or regulation applicable to such Company or any of its properties or assets or result (with or without notice or the passage of time) in a violation, conflict or breach of, or constitute a default under, or result in the creation or imposition require any consent to be obtained under its certificate of any Encumbrance upon any of the assets or properties of the Company under (i) the Company's Restated Certificate of Incorporation or bylawsincorporation, (ii) any agreementarticles, judgment, order bylaws or other obligation to which the Company is a party or by which the Company is bound, or (iii) any law or regulation applicable to the Company or its assets or properties, except for such violations, conflicts, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not prevent, materially delay or materially adversely affect the consummation of the transactions contemplated by this Agreement or (y) will be waived or otherwise released prior to the Closing as promptly as practicable (but in any event within 60 days) following the date of this Agreement.constituent documents;
(d) The Company has taken all necessary action there is no proceeding, claim or investigation pending before any Governmental Entity, or threatened against it or any of its properties that, individually or in the aggregate, would reasonably be expected to ensure that neither the entering into of have a material adverse effect on its ability to execute and deliver this Agreement or the Registration Rights Agreement nor the consummation of the transactions contemplated hereby or thereby will (i) cause the preferred share purchase rights issued pursuant to the Rights Support Agreement, dated as of March 8, 1988, as amended, between to perform its obligations hereunder and to consummate the Company and First Chicago Trust Company of New York, as Rights Agent Restructuring Transaction; and
(the "Rights Agreement"), to become exercisable, (iie) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined it is conducting its business in the Rights Agreement) or (iii) cause asubstantial compliance with all applicable Laws.
Appears in 1 contract
Samples: Support Agreement
The Company’s Representations and Warranties. The Company hereby represents and warrants to Sellers as followsthe Prior Trustee and the Successor Trustee that:
(a) The Company a. It is a corporation duly incorpo- rated, organized and validly existing and in good standing under all applicable laws, and this Instrument has been duly authorized, executed and delivered on its behalf and constitutes its legal, valid, binding and enforceable obligation;
b. It has not entered into any amendment or supplement to the laws Indenture, and the Indenture is in full force and effect;
c. It is not in default of any of its obligations under the Indenture, and to the best of the State knowledge of Delaware. the Company, no event has occurred and is continuing which is, or after notice or lapse of time, or both, would become, an Event of Default under the Indenture;
d. No covenant or condition contained in the Indenture has been waived by the Prior Trustee or, to the best of the knowledge of the Company, by the owners of the percentage in aggregate principal amount of the Notes required by the Indenture to effect any such waiver;
e. The Company has all requisite corporate power and authority to execute and deliver this Agreement and the Registration Rights Agreement and to consummate the trans- actions contemplated hereby and thereby. This Agreement and the Registration Rights Agreement have been duly Indenture was validly executed and delivered by the Company and the Notes were validly issued by the Company;
f. There is no action, andsuit, assuming or proceeding pending, or to the due execution here- of by each other party hereto and thereto, constitute the le- gal, valid and binding obligations best of the Company's knowledge, enforceable threatened against the Company in accordance with the terms hereof and thereof.
(b) The Company has not entered into before any agree- ment, is not engaged in court or any discussions, and has not authorized its representatives to engage in such discussions, with respect to governmental authority arising out of any transaction (i) that upon consummation would constitute a "Change of Control" act or omission of the Company as defined under the Indenture;
g. The execution, delivery and performance of this Instrument does not and will not conflict with, or result in Section 6(g)a breach of, (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% terms or more of the outstanding shares of Common Stock.
(c) Neither the execution and delivery by the Company of this Agreement nor the consummation by the Company of the transactions contemplated hereby will violate or con- flict withprovisions of, or constitute a default under, or result in the creation or imposition of any Encumbrance upon any of the assets or properties of the Company under (i) the Company's Restated Certificate of Incorporation or bylawscontract, (ii) any agreement, judgment, order indenture or other obligation instrument (including, without limitation, its certificate of incorporation, by-laws and/or any and all other applicable organizational documents) to which the Company it is a party or by which the Company it or its property is bound, or (iiiii) any law judgment, decree or order of any court or governmental agency or regulatory body or law, rule or regulation applicable to the Company it or its assets or properties, except for such violations, conflicts, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not prevent, materially delay or materially adversely affect property; and
h. All conditions precedent in the consummation Indenture relating to the appointment of the transactions contemplated Successor Trustee as the successor trustee under the Indenture have been complied with by this Agreement or (y) will be waived or otherwise released prior to the Closing as promptly as practicable (but in any event within 60 days) following the date of this AgreementCompany.
(d) j. The Company has taken all necessary action to ensure that neither the entering into shall give notice of this Agreement or the Registration Rights Agreement nor the consummation such resignation of the transactions contemplated hereby or thereby will (i) cause Prior Trustee and the preferred share purchase rights issued pursuant appointment of a successor trustee to all Holders as provided in the Rights Agreement, dated as of March 8, 1988Indenture, as amended, between provided in Section 6.10(C) of the Company Indenture. The notice shall include the name of the successor trustee and First Chicago the address of its Corporate Trust Company of New York, as Rights Agent (the "Rights Agreement"), to become exercisable, (ii) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined in the Rights Agreement) or (iii) cause aOffice.
Appears in 1 contract
Samples: Instrument of Resignation, Appointment and Acceptance (FBL Financial Group Inc)
The Company’s Representations and Warranties. The Company represents represents, warrants and warrants covenants to Sellers as followsAtai that:
(a) The Company it is a corporation duly incorpo- rated, organized and validly existing and in good standing under the laws of the State its jurisdiction of Delaware. The Company incorporation, and has all requisite corporate power and authority to execute enter into and deliver perform its obligations under this Agreement and the Registration Rights Agreement and to consummate the trans- actions contemplated hereby and thereby. This Agreement and the Registration Rights Agreement have been duly executed and delivered by the Company, and, assuming the due execution here- of by each other party hereto and thereto, constitute the le- gal, valid and binding obligations of the Company, enforceable against the Company in accordance with the terms hereof and thereof.Agreement;
(b) The Company it has not entered into any agree- menttaken all necessary corporate action, is not engaged in any discussionssteps and proceedings to approve or authorize, validly and has not authorized effectively, the execution and delivery of this Agreement and perform its representatives to engage in such discussions, with respect to any transaction (i) that upon consummation would constitute a "Change of Control" of the Company as defined in Section 6(g), (ii) that is described in Section 6(g)(iii) or (iii) that involves the purchase by any Person (as defined in Section 6(a)(i)) or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of 30% or more of the outstanding shares of Common Stock.obligations hereunder;
(c) Neither the execution and delivery by the Company of this Agreement nor by it and the consummation by the Company performance of its obligations hereunder shall not result in either a breach or violation of any of the transactions contemplated hereby will violate or con- flict withprovisions of, or constitute a default under, or result in conflict with or cause the creation or imposition acceleration of any Encumbrance upon any of the assets or properties of the Company under its obligations under:
(i) the Company's Restated Certificate of Incorporation any agreement to which it is a party or bylaws, is otherwise bound by;
(ii) any agreement, judgment, order of the terms and provisions of its organizational documents or other obligation to which the Company is a party or by which the Company is boundby-laws, or resolutions of the board of directors (or any committee thereof);
(iii) any law judgment, decree, order or award of any court, governmental body or arbitrator having jurisdiction over it;
(iv) any license, permit, approval, consent or authorization held by it; or
(v) any applicable law, statute, ordinance, regulation applicable to the Company or its assets or properties, except for such violations, conflicts, breaches, defaults or Encumbrances under clauses (ii) or (iii) which (x) would not prevent, materially delay or materially adversely affect the consummation of the transactions contemplated by this Agreement or (y) will be waived or otherwise released prior to the Closing as promptly as practicable (but in any event within 60 days) following the date of this Agreement.rule;
(d) The to the knowledge of the Company, the Company owns all Intellectual Property Rights, free and clear of any lien, encumbrance, or Third-Party rights;
(e) to the knowledge of the Company, there are no legal claims, judgments or settlements against or owed by the Company or pending legal claims or litigation, in each case relating to the Intellectual Property or Intellectual Property Rights of the Company relevant to the Field and it has not received notice of any action, suit, inquiry, investigation or other proceeding threatened, pending or ongoing brought by any Third Party that challenges or threatens the validity or enforceability of any of the patents or patent applications included in such Intellectual Property or Intellectual Property Rights or that the development, manufacture, commercialization and use of Licensed Products would infringe or misappropriate the Intellectual Property or Intellectual Property Rights of any Third Party;
(f) to the knowledge of the Company, no Third Party is infringing or misappropriating any Intellectual Property of the Company relevant to the Field; and
(g) the Company has taken all necessary action the right to ensure grant to Atai the rights and licenses that neither the entering into of this Agreement or the Registration Rights Agreement nor the consummation of the transactions contemplated hereby or thereby will (i) cause the preferred share purchase rights issued pursuant it purports to the Rights Agreementgrant hereunder, dated as of March 8, 1988, as amended, between and the Company has not granted and First Chicago Trust Company of New York, as Rights Agent (will grant to any Third Party any rights that would interfere or be inconsistent with the "Rights Agreement"), rights and licenses granted to become exercisable, (ii) cause any Seller or Seller Affiliate to become an "Acquiring Person" (as defined in the Rights Agreement) or (iii) cause aAtai hereunder.
Appears in 1 contract
Samples: Strategic Development Agreement (IntelGenx Technologies Corp.)
