Warranties and Representations of the Company. Except as set forth in the attached Schedule of Exceptions, (“Schedule”) or in the Current Securities Filings, the Company hereby represents and warrants to Investor as follows: (a) The Company is a corporation duly incorporated validly existing and in good standing under the laws of New Jersey and has all requisite corporate authority to own, lease and operate its properties and assets and to carry on its business as now being conducted. The Company is duly qualified or licensed as a foreign corporation and is in good standing in all jurisdictions where the nature of its business or property makes such qualification or licensing necessary and where the failure to do so would have a material adverse effect on its condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects of the Company and its subsidiaries, taken as a whole (hereinafter a “Material Adverse Effect”). (b) The Company will have, at the Closing Date, all requisite legal and corporate power to execute and deliver this Agreement, the Registration Rights Agreement and the Investor Rights Agreement (the Registration Rights Agreement and the Investor Rights Agreement are hereinafter collectively referred to as the “Related Agreements”) and to consummate any other transactions contemplated by the terms of this Agreement and the Related Agreements, including the delivery of certificate evidencing the Shares being purchased and to carry out and perform its obligations under the terms of this Agreement and the Related Agreements. (c) (i) The execution and delivery of the Agreement and Related Agreements by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Directors or stockholders is required, and (ii) the Agreement and Related Agreements have been duly executed and delivered by the Company, and at the Closing shall constitute valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application. (d) The authorized capital stock of the Company is as set forth in the Current Securities Filings. Immediately prior to the Closing of this transaction and a similar transaction with an affiliate of Purchaser, there were 13,636,358 shares of Common Stock outstanding and an additional 203,030 shares of Common Stock will be issued in a private transaction closing contemporaneously with the transactions contemplated hereby. Except as set forth in this Agreement, the Schedule or the Current Securities Filings, no options, warrants, subscriptions or purchase rights of any nature to acquire from the Company shares of capital stock or other securities are authorized, issued or outstanding, nor is the Company obligated under its charter documents or under any agreement by which the Company is bound to issue shares of its capital stock or other securities. There are no restrictions on the transfer of shares of capital stock of the Company other than those imposed by relevant federal and state securities laws and as otherwise contemplated by this Agreement. To the Company’s best knowledge, there are no agreements, understandings, trusts or other collaborative arrangements or understandings concerning the voting of the capital stock of the Company. (e) The execution, delivery and performance of this Agreement and the Related Agreements by the Company and the consummation by the Company of the transactions contemplated herein and therein do not and will not (i) violate any provision of the Company’s Articles of Incorporation or Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company, or any of its subsidiaries is a party, (iii) create or impose a lien, charge or encumbrance on any property of the Company under any agreement or any commitment to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or by which any of their respective properties or assets are bound, or (iv) result in a violation of any federal, state, local or other foreign statute, rule, regulation, order, judgment or decree (including any federal or state securities laws and regulations) applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries are bound or affected, except, in all cases, for such conflicts, defaults, termination, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect. (f) The financial statements of the Company comply as to form in all material respects with applicable accounting requirements under GAAP or other applicable rules and regulations with respect thereto including the rules and regulations of the Securities and Exchange Commission (“SEC”). Such financial statements have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of operations and cash flows for the 3 periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). For purposes hereof, the term “GAAP” shall mean the United States Generally Accepted Accounting Principles as those conventions, rules and procedures are determined by the Financial Accounting Standard Board and its predecessor or successor agencies. (g) The Company has no liabilities, obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that would be required to be disclosed on a balance sheet of the Company or any subsidiary (including the notes thereto) in conformity with GAAP which are not disclosed in the Schedule, other than those incurred in the ordinary course of the Company’s business since January 31, 2004 and which, individually or in the aggregate, do not or would not have a Material Adverse Effect on the Company. (h) The Company has all franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals necessary for the conduct of its business as now being conducted by it unless the failure to possess such franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. (i) The Company has filed all documents that the Company was required to file under the Securities Exchange Act of 1934 as amended (the “Exchange Act”) during the 36 months preceding the date of this Agreement (collectively, the “Securities Filings”), and those Securities Filings, as amended, complied as to form in all material respects with the SEC’s requirements as of their respective filing dates, and the information contained therein as of the date thereof did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading. (j) The Company has complied and will comply with all applicable federal and state securities laws in connection with the offer, issuance and sale of all securities of the Company, including the Shares. Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell or solicit offers to buy the Shares or similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any person (other than the Investor and Sky Capital Holdings Ltd.), so as to bring the issuance and sale of the Shares under the registration provisions of the Securities Act and applicable state securities laws. Neither the Company nor any of its affiliates, nor any person acting omits or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Shares. (k) Since January 31, 2004, there has not been: any change in the assets, liabilities, financial condition or operating results of he Company from that reflected in the Current Securities Filings, including the financial statements contained therein, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse. (l) Except as reflected in the Current Securities Filings, there are no actions, suits, proceedings or investigations pending or, to the Company’s knowledge, threatened against, the Company or its properties (not, to the Company’s knowledge against any of the officers or directors of the Company) before any court, arbitrator or governmental agency which, in the case of actions, suits, proceedings or investigations pending or threatened against officers or directors of the Company, either in any case or in the aggregate, might have a Material Adverse Effect on the Company or its business and properties, and none of which questions the validity of the Agreement, the right of the Company to enter into the Agreement or the Related Agreements or consummate the transactions contemplated hereby or thereby, or any action taken or to be taken in connection herewith, nor is the Company aware that there is a reasonable basis for any of the foregoing. (m) The Company has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Company, any liability for brokerage or finder’s fees or agent’s commissions or any similar charges in connection with this Agreement and the Related Agreements. (n) The Company has fully provided Investor with all the information which Investor has requested for deciding whether to acquire the Shares and all information which the Company believes is reasonably necessary to enable Investor to make such decision. No representation or warranty of the Company contained in this Agreement and the Related Agreements and the exhibits and schedules attached hereto and thereto, any certificate furnished or to be furnished to Investor at the Closing or other written information furnished to the Investor or their counsel in connection with the transactions contemplated by this Agreement and the Related Agreements contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. There is no fact known to the Company that has not been disclosed herein or in the Related Agreements, or in any other agreement, document or written statement furnished by the Company to the Investor in connection with the transactions contemplated hereby and thereby which is specific to the Company, as opposed to the industry in which the Company operates, and which materially adversely affects or is reasonably likely to materially and adversely affect the business, properties, assets or financial condition of the Company
Appears in 2 contracts
Samples: Subscription and Stock Sale Agreement (Crown Financial Group Inc), Subscription and Stock Sale Agreement (Crown Financial Group Inc)
Warranties and Representations of the Company. Except as set forth in the attached Schedule of Exceptions, (“Schedule”) or in the Current Securities Filings, the The Company hereby represents and warrants to Investor as followsthat:
(a) The Company is a corporation duly incorporated organized, validly existing and in good standing under the laws of New Jersey the State of Delaware. Attached hereto as Exhibits C and has all requisite corporate authority to ownD, lease respectively, are true and operate its properties complete copies of the Certificate of Incorporation and assets and to carry on its business as now being conducted. The Company is duly qualified or licensed as a foreign corporation and is in good standing in all jurisdictions where the nature of its business or property makes such qualification or licensing necessary and where the failure to do so would have a material adverse effect on its condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects Bylaws of the Company and its subsidiaries, taken as a whole (hereinafter a “Material Adverse Effect”)in effect on the date hereof.
(b) The Company will have, at has been recently formed to enter into the Merger Agreement and to consummate the transactions contemplated thereby and has not conducted any business other than in connection therewith and certain start-up activities. As of the Closing Date, all requisite legal the Company will have no assets or liabilities other than those incurred in connection with the Company's incorporation and corporate power the Company's start-up activities, and those acquired or assumed pursuant to execute and deliver this Agreement, the Registration Rights Merger Agreement and those acquired or incurred in connection with the Investor Rights Agreement (the Registration Rights Agreement and the Investor Rights Agreement are hereinafter collectively referred to as the “Related Agreements”) and to consummate any other transactions contemplated thereby.
(c) The execution, delivery and performance by the terms Company of this Agreement and the Related Agreements, including the delivery of certificate evidencing the Shares being purchased and to carry out and perform its obligations under the terms of this Merger Agreement and the Related Agreements.
(c) (i) The execution and delivery of the Agreement and Related Agreements by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary are within the corporate action and no further consent or authorization powers of the Company. The Board of Directors of the Company or its Board of Directors or stockholders is required(the "Board") has authorized the execution, delivery, and (ii) the performance of this Agreement and Related Agreements have been duly executed the Merger Agreement, and delivered by each of the transactions contemplated hereby and thereby. No other corporate action is necessary to authorize such execution, delivery and performance, and upon such execution and delivery, each of this Agreement and the Merger Agreement shall constitute a valid and binding obligation of the Company, and at the Closing shall constitute valid and binding obligations of the Company enforceable against the Company in accordance with their respective its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally . The Board has authorized the enforcement of, creditor’s rights issuance and remedies or by other equitable principles delivery of general applicationthe Shares in accordance with this Agreement.
(d) The authorized Shares to be issued and sold by the Company pursuant to this Agreement, when issued in accordance with the provisions hereof, will be validly issued by the Company, fully paid and nonassessable shares of the Company, upon delivery thereof, the Investors will acquire good title to the Shares, free and clear of any lien or claim of any kind, other than as contemplated by this Agreement and the Stockholders Agreement or any liens incurred by the Investors, and no stockholder of the Company has any preemptive rights to subscribe for any such Shares. The shares of Common Stock issuable upon conversion of the Shares will be, when issued in accordance with the terms of the Amended and Restated Certificate, validly issued by the Company, fully paid and nonassessable shares of the Company, upon delivery thereof, the Investors will acquire good title to the shares of Common Stock, free and clear of any lien or claim of any kind, other than as contemplated by this Agreement and the Stockholders Agreement or any liens incurred by the Investors, and no stockholder of the Company will have any preemptive rights to subscribe for any such shares.
(e) Except for the filing of the Amended and Restated Certificate with the Secretary of State of the State of Delaware and for filings by the Investors, if any, under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, the creation, authorization, issuance, offer and sale of the Shares do not require any consent, approval or authorization of, or filing, registration or qualification with, any governmental authority on the part of the Company or the vote, consent or approval in any manner of the holders of any Security (as hereinafter defined) of the Company as a condition to the execution and delivery of this Agreement or the creation, authorization, issuance, offer and sale of the Shares. The execution and delivery by the Company of this Agreement and the Merger Agreement and the performance by the Company of its obligations hereunder and thereunder will not violate (i) the terms and conditions of the Certificate of Incorporation or the Bylaws of the Company, or any agreement or instrument to which the Company is a party or by which it is bound or (ii) subject to the accuracy of the Investors' representations and warranties contained in Section 5 hereof, any federal or state law.
(f) Immediately prior to the Closing, the outstanding capital stock of the Company is as set forth in the Current Securities Filingswill consist of one share of Common Stock. Immediately prior to after the Closing Closing, the outstanding capital stock of this transaction and a similar transaction with an affiliate the Company will consist of Purchaser, there were 13,636,358 shares one share of Common Stock outstanding and an additional 203,030 shares of Common Stock will be issued in a private transaction closing contemporaneously with the transactions contemplated herebyShares. Except as set forth in this Agreement, the Schedule Section 4(f) or the Current Securities FilingsAmended and Restated Certificate and except for options to be made available to the management of the Company there are, and immediately after the Closing there will be, no options, warrants, subscriptions or purchase rights of any nature to acquire from the Company outstanding (i) shares of capital stock or other voting securities are authorizedof the Company, issued or outstanding, nor is (ii) securities of the Company obligated under its charter documents convertible into or under any agreement by which the Company is bound to issue exchangeable for shares of its capital stock or voting securities of the Company, (iii) options or other rights to acquire from the Company, or other obligations of the Company to issue any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company or (iv) obligations of the Company to repurchase or otherwise acquire or retire any shares of capital stock or any convertible securities. There are , rights or options of the type described in clause (i), (ii), or (iii).
(g) Other than this Agreement, the Merger Agreement, the Stockholders Agreement and the Registration Rights Agreement, no restrictions on the transfer of shares agreement or other arrangement regarding any class of capital stock of the Company other than those imposed by relevant federal and state securities laws and as otherwise contemplated by this Agreement. To the Company’s best knowledge, there are no agreements, understandings, trusts or other collaborative arrangements or understandings concerning the voting of the capital stock of the Company.
(e) The execution, delivery and performance of this Agreement and the Related Agreements by the Company and the consummation by the Company of the transactions contemplated herein and therein do not and will not (i) violate any provision of the Company’s Articles of Incorporation or Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which exists between the Company, or any of its subsidiaries affiliates and any Person. The Company is not a partyparty to, (iii) create has not agreed to be a party to, and does not plan to become a party to any agreement or impose arrangement with any affiliate, stockholder or other person or entity who will become a lien, charge or encumbrance on any property stockholder of the Company under any agreement or any commitment to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or by which any of their respective properties or assets are bound, or (iv) result in a violation of any federal, state, local or other foreign statute, rule, regulation, order, judgment or decree (including any federal or state securities laws and regulations) applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries are bound or affected, except, in all cases, for such conflicts, defaults, termination, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect.
(f) The financial statements of the Company comply as to form in all material respects with applicable accounting requirements under GAAP or other applicable rules and regulations with respect thereto including the rules and regulations of the Securities and Exchange Commission (“SEC”). Such financial statements have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of operations and cash flows for the 3 periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). For purposes hereof, the term “GAAP” shall mean the United States Generally Accepted Accounting Principles as those conventions, rules and procedures are determined by the Financial Accounting Standard Board and its predecessor or successor agencies.
(g) The Company has no liabilities, obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that would be required to be disclosed on a balance sheet of the Company or any subsidiary (including the notes thereto) in conformity with GAAP which are not disclosed in the Schedule, other than those incurred in the ordinary course of the Company’s business since January 31, 2004 and which, individually or in the aggregate, do not or would not have a Material Adverse Effect on the Company.
(h) The Company has all franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals necessary for the conduct of its business as now being conducted by it unless the failure to possess such franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(i) The Company has filed all documents that the Company was required to file under the Securities Exchange Act of 1934 as amended (the “Exchange Act”) during the 36 months preceding the date of this Agreement (collectively, the “Securities Filings”), and those Securities Filings, as amended, complied as to form in all material respects with the SEC’s requirements as of their respective filing dates, and the information contained therein as of the date thereof did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading.
(j) The Company has complied and will comply with all applicable federal and state securities laws in connection with the offer, issuance and sale of all securities of the Company, including the Shares. Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell or solicit offers to buy the Shares or similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any person (other than the Investor and Sky Capital Holdings Ltd.), so as to bring the issuance and sale of the Shares under the registration provisions of the Securities Act and applicable state securities laws. Neither the Company nor any of its affiliates, nor any person acting omits or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Shares.
(k) Since January 31, 2004, there has not been: any change in the assets, liabilities, financial condition or operating results of he Company from that reflected in the Current Securities Filings, including the financial statements contained therein, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse.
(l) Except as reflected in the Current Securities Filings, there are no actions, suits, proceedings or investigations pending or, to the Company’s knowledge, threatened against, the Company or its properties (not, to the Company’s knowledge against any of the officers or directors of the Company) before any court, arbitrator or governmental agency which, in the case of actions, suits, proceedings or investigations pending or threatened against officers or directors of the Company, either in any case or in the aggregate, might have a Material Adverse Effect on the Company or its business and properties, and none of which questions the validity of the Agreement, the right of the Company to enter into the Agreement or the Related Agreements or consummate the transactions contemplated hereby or thereby, or any action taken or to be taken in connection herewith, nor is the Company aware that there is a reasonable basis for any of the foregoing.
(m) The Company has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Company, any liability for brokerage or finder’s fees or agent’s commissions or any similar charges in connection with this Agreement and the Related Agreements.
(n) The Company has fully provided Investor with all the information which Investor has requested for deciding whether to acquire the Shares and all information which the Company believes is reasonably necessary to enable Investor to make such decision. No representation or warranty of the Company contained in this Agreement and the Related Agreements and the exhibits and schedules attached hereto and thereto, any certificate furnished or to be furnished to Investor at the Closing or other written information furnished to the Investor or their counsel in connection with the transactions contemplated by this the Merger Agreement and the Related Agreements contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under this Agreement, which they were made. There is no fact known to the Company that has not been disclosed herein to each Investor.
(h) There is no investment banker, broker or in the Related Agreementsfinder which has been retained by, will be retained by or in any other agreement, document or written statement furnished by is authorized to act on behalf of the Company who will be entitled to any fee or commission from the Investor in connection with Target or the Company upon consummation of the transactions contemplated hereby and thereby which is specific to the by this Agreement.
(i) Neither Company, as opposed to the industry Merger Sub nor any executive officer or director of Company or Merger Sub has acquired any shares of Target Common Stock (or any security exchangeable for or convertible into such shares) since January 30, 1998 at a price in which the Company operates, and which materially adversely affects or is reasonably likely to materially and adversely affect the business, properties, assets or financial condition excess of the CompanyPer Share Amount (as defined in the Merger Agreement.
Appears in 2 contracts
Samples: Subscription and Contribution Agreement (Hilltopper Holding Corp), Subscription and Contribution Agreement (Warburg Pincus Equity Partners Lp)
Warranties and Representations of the Company. Except as set forth in the attached Schedule of Exceptions, (“Schedule”) or in the Current Securities Filings, the The Company hereby represents and warrants to Investor as followsthat:
(a) The Company is a corporation duly incorporated organized, validly existing and in good standing under the laws of New Jersey and has all requisite corporate authority to own, lease and operate its properties and assets and to carry on its business as now being conducted. The Company is duly qualified or licensed as a foreign corporation and is in good standing in all jurisdictions where the nature State of its business or property makes such qualification or licensing necessary and where the failure to do so would have a material adverse effect on its condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects of the Company and its subsidiaries, taken as a whole (hereinafter a “Material Adverse Effect”)Washington.
(b) The Company will haveBoard has authorized or will, at prior to the Closing DateDate authorize the execution, all requisite legal delivery, and corporate power to execute and deliver this Agreement, the Registration Rights Agreement and the Investor Rights Agreement (the Registration Rights Agreement and the Investor Rights Agreement are hereinafter collectively referred to as the “Related Agreements”) and to consummate any other transactions contemplated by the terms performance of this Agreement and the Related Agreements, including the delivery of certificate evidencing the Shares being purchased and to carry out and perform its obligations under the terms of this Agreement and the Related Agreements.
(c) (i) The execution and delivery of the Agreement and Related Agreements by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary thereby. No other corporate action is necessary to authorize such execution, delivery and no further consent or authorization of the Company or its Board of Directors or stockholders is requiredperformance, and (ii) the upon such execution and delivery, this Agreement shall constitute a valid and Related Agreements have been duly executed and delivered by binding obligation of the Company, and at the Closing shall constitute valid and binding obligations of the Company enforceable against the Company in accordance with their respective its terms. The Board has authorized or will, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application.
(d) The authorized capital stock of the Company is as set forth in the Current Securities Filings. Immediately prior to the Closing Date, authorize the issuance and delivery of the Shares in accordance with this transaction Agreement.
(c) The Shares to be issued and a similar transaction sold by the Company pursuant to this Agreement, when issued in accordance with an affiliate the provisions hereof, will be validly issued by the Company, fully paid and nonassessable shares of Purchaserthe Company, there were 13,636,358 and no shareholder of the Company has any preemptive rights to subscribe for any such Shares. The shares of Common Stock outstanding issuable upon conversion of the Shares when issued in accordance with the Statement of Rights and an additional 203,030 shares of Common Stock Preferences, will be validly issued in a private transaction closing contemporaneously with the transactions contemplated hereby. Except as set forth in this Agreement, the Schedule or the Current Securities Filings, no options, warrants, subscriptions or purchase rights of any nature to acquire from the Company shares of capital stock or other securities are authorized, issued or outstanding, nor is the Company obligated under its charter documents or under any agreement by which the Company is bound to issue shares of its capital stock or other securities. There are no restrictions on the transfer of shares of capital stock of the Company other than those imposed by relevant federal and state securities laws and as otherwise contemplated by this Agreement. To the Company’s best knowledge, there are no agreements, understandings, trusts or other collaborative arrangements or understandings concerning the voting of the capital stock fully paid and nonassessable shares of the Company.
(ed) Except with respect to filings made in connection with exemptions from registration under state or federal securities laws, the creation, authorization, issuance, offer and sale of the Shares do not require any consent, approval or authorization of, or filing, registration or qualification with, any governmental authority on the part of the Company or the vote, consent or approval in any manner of the holders of any security of the Company as a condition to the execution and delivery of this Agreement or the creation, authorization, issuance, offer and sale of the Shares. The execution, execution and delivery and performance by the Company of this Agreement and the Related Agreements by the Company and the consummation performance by the Company of the transactions contemplated herein and therein do not and its obligations hereunder will not violate (i) violate any provision the terms and conditions of the Company’s Articles or the Bylaws of Incorporation or Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company, or any of its subsidiaries is a party, (iii) create or impose a lien, charge or encumbrance on any property of the Company under any agreement or any commitment instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries it is bound or by which any (ii) subject to the accuracy of their respective properties or assets are boundyour representations and warranties contained in Section 5 hereof, or (iv) result in a violation of any federal, state, local or other foreign statute, rule, regulation, order, judgment or decree (including any federal or state securities laws and regulations) applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries are bound or affected, except, in all cases, for such conflicts, defaults, termination, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effectlaw.
(f) The financial statements of the Company comply as to form in all material respects with applicable accounting requirements under GAAP or other applicable rules and regulations with respect thereto including the rules and regulations of the Securities and Exchange Commission (“SEC”). Such financial statements have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of operations and cash flows for the 3 periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). For purposes hereof, the term “GAAP” shall mean the United States Generally Accepted Accounting Principles as those conventions, rules and procedures are determined by the Financial Accounting Standard Board and its predecessor or successor agencies.
(g) The Company has no liabilities, obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that would be required to be disclosed on a balance sheet of the Company or any subsidiary (including the notes thereto) in conformity with GAAP which are not disclosed in the Schedule, other than those incurred in the ordinary course of the Company’s business since January 31, 2004 and which, individually or in the aggregate, do not or would not have a Material Adverse Effect on the Company.
(h) The Company has all franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals necessary for the conduct of its business as now being conducted by it unless the failure to possess such franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(i) The Company has filed all documents that the Company was required to file under the Securities Exchange Act of 1934 as amended (the “Exchange Act”) during the 36 months preceding the date of this Agreement (collectively, the “Securities Filings”), and those Securities Filings, as amended, complied as to form in all material respects with the SEC’s requirements as of their respective filing dates, and the information contained therein as of the date thereof did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading.
(j) The Company has complied and will comply with all applicable federal and state securities laws in connection with the offer, issuance and sale of all securities of the Company, including the Shares. Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell or solicit offers to buy the Shares or similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any person (other than the Investor and Sky Capital Holdings Ltd.), so as to bring the issuance and sale of the Shares under the registration provisions of the Securities Act and applicable state securities laws. Neither the Company nor any of its affiliates, nor any person acting omits or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Shares.
(k) Since January 31, 2004, there has not been: any change in the assets, liabilities, financial condition or operating results of he Company from that reflected in the Current Securities Filings, including the financial statements contained therein, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse.
(l) Except as reflected in the Current Securities Filings, there are no actions, suits, proceedings or investigations pending or, to the Company’s knowledge, threatened against, the Company or its properties (not, to the Company’s knowledge against any of the officers or directors of the Company) before any court, arbitrator or governmental agency which, in the case of actions, suits, proceedings or investigations pending or threatened against officers or directors of the Company, either in any case or in the aggregate, might have a Material Adverse Effect on the Company or its business and properties, and none of which questions the validity of the Agreement, the right of the Company to enter into the Agreement or the Related Agreements or consummate the transactions contemplated hereby or thereby, or any action taken or to be taken in connection herewith, nor is the Company aware that there is a reasonable basis for any of the foregoing.
(m) The Company has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Company, any liability for brokerage or finder’s fees or agent’s commissions or any similar charges in connection with this Agreement and the Related Agreements.
(n) The Company has fully provided Investor with all the information which Investor has requested for deciding whether to acquire the Shares and all information which the Company believes is reasonably necessary to enable Investor to make such decision. No representation or warranty of the Company contained in this Agreement and the Related Agreements and the exhibits and schedules attached hereto and thereto, any certificate furnished or to be furnished to Investor at the Closing or other written information furnished to the Investor or their counsel in connection with the transactions contemplated by this Agreement and the Related Agreements contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. There is no fact known to the Company that has not been disclosed herein or in the Related Agreements, or in any other agreement, document or written statement furnished by the Company to the Investor in connection with the transactions contemplated hereby and thereby which is specific to the Company, as opposed to the industry in which the Company operates, and which materially adversely affects or is reasonably likely to materially and adversely affect the business, properties, assets or financial condition of the Company
Appears in 2 contracts
Samples: Subscription Agreement (Warburg Pincus Equity Partners Lp), Subscription Agreement (Cobalt Group Inc)
Warranties and Representations of the Company. Except as set forth in the attached Schedule of Exceptions, (“Schedule”) or in the Current Securities Filings, the The Company hereby represents makes the following representations and warrants warranties to Investor Acquiree and Shareholder, each of which is true as followsof the date hereof and as of the Closing Date and each of which shall be deemed to be independently material and to have been relied upon by Acquiree and Shareholder in connection with this Agreement, and which representations shall be deemed to survive the closing herein:
(a) 5.1 The Company is a corporation duly incorporated organized, validly existing by virtue of the laws of the state of Utah, and is in good standing under the laws of New Jersey thereof; and has all requisite corporate authority to own, lease and operate its properties and assets and to carry on its business as now being conducted. The Company is duly qualified or licensed as a foreign corporation and is in good standing in all jurisdictions where neither the nature of its business nor the character and location of its properties requires it to be qualified or property licensed to do business in any other jurisdiction. Since its incorporation, no claim has been asserted by any governmental authority that the nature of its business, or the character and location of the properties owned or operated by the Company makes such qualification or licensing necessary and where the failure to do business necessary in any jurisdiction in which it is not so would have a material adverse effect on its condition (financial qualified or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects of the Company and its subsidiaries, taken as a whole (hereinafter a “Material Adverse Effect”).licensed;
(b) The Company will have, at the Closing Date, all requisite legal and corporate power to execute and deliver this Agreement, the Registration Rights Agreement and the Investor Rights Agreement (the Registration Rights Agreement and the Investor Rights Agreement are hereinafter collectively referred to as the “Related Agreements”) and to consummate any other transactions contemplated by the terms of this Agreement and the Related Agreements, including the delivery of certificate evidencing the Shares being purchased and to carry out and perform its obligations under the terms of this Agreement and the Related Agreements.
(c) (i) The execution and delivery of the Agreement and Related Agreements by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Directors or stockholders is required, and (ii) the Agreement and Related Agreements have been duly executed and delivered by the Company, and at the Closing shall constitute valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application.
(d) 5.2 The authorized capital stock of the Company is as set forth in the Current Securities Filings. Immediately prior to the Closing consists solely of this transaction 20,000,000 Shares of Common Stock, $.0001 par value per Share of which Shares, 3,182,330 are presently issued and a similar transaction with an affiliate outstanding Shares, all of Purchaser, there were 13,636,358 which are fully paid and nonassessable shares of Common Stock outstanding and an additional 203,030 shares of Common Stock will be issued in a private transaction closing contemporaneously with the transactions contemplated herebyCompany's common stock. Except as set forth in this Agreementpreviously disclosed to Acquiree and Shareholder, as of the Schedule or the Current Securities Filingsdate hereof, there are no outstanding subscriptions, options, warrants, subscriptions calls, commitments, agreements or purchase rights of any nature to acquire from the Company shares of capital stock or other convertible securities are authorized, issued or outstanding, nor is the Company obligated under its charter documents or under any agreement by which the Company is bound to issue shares of its capital stock or other securities. There are no restrictions on the transfer of shares of capital stock of the Company other than those imposed by relevant federal and state securities laws and as otherwise contemplated by this Agreement. To the Company’s best knowledge, there are no agreements, understandings, trusts or other collaborative arrangements or understandings concerning the voting of the capital stock of the Company.
(e) The execution, delivery and performance of this Agreement and the Related Agreements by the Company and the consummation by the Company of the transactions contemplated herein and therein do not and will not (i) violate any provision of the Company’s Articles of Incorporation or Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company, or any of its subsidiaries is a party, (iii) create or impose a lien, charge or encumbrance on any property of the Company under any agreement or any commitment to which the Company or any of its subsidiaries is a party or by which it is bound, calling for or requiring the issuance of common stock of the Company, nor are there any voting, registration rights or other agreements relating to the Common Stock or Warrants;
5.3 The Company or any has delivered to Acquiree copies of its subsidiaries is bound or by which any of their respective properties or assets are bound, or (iv) result in a violation of any federal, state, local or other foreign statute, rule, regulation, order, judgment or decree (including any federal or state securities laws and regulations) applicable to balance sheet as at the Company or any end of its subsidiaries or most recent fiscal year, and the related operating statements for the periods then ended, all of said financial statements having been certified by which any property or asset Xxxxxx & Xxxxxx, independent certified public accountant. All financial statements submitted to Acquiree are true, complete, accurate and fairly present the financial condition of the Company or any as of the date thereof, and the results of its subsidiaries are bound or affectedoperations for the periods covered, except, all in all cases, for such conflicts, defaults, termination, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect.
(f) The financial statements of the Company comply as to form in all material respects conformity with applicable generally accepted accounting requirements under GAAP or other applicable rules and regulations with respect thereto including the rules and regulations of the Securities and Exchange Commission (“SEC”). Such financial statements have been prepared in accordance with GAAP principles applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of operations and cash flows for the 3 periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). For purposes hereof, the term “GAAP” shall mean the United States Generally Accepted Accounting Principles as those conventions, rules and procedures are determined by the Financial Accounting Standard Board and its predecessor or successor agencies.
(g) basis.. The Company has no liabilities, obligationsobligations or claims whatsoever, claims either fixed or losses (whether liquidated contingent, matured or unliquidatedunmatured, secured not reflected in such financial statements. All liabilities for the current and for all prior years, including any income and sales taxes or unsecured, absolute, accrued, contingent or otherwise) that would be required to be disclosed on a balance sheet of other taxes for which the Company has any liability, have been paid in full or any subsidiary (including the notes thereto) have been adequately provided for in conformity said financial statements in accordance with GAAP which are not disclosed in the Schedule, other than those incurred in the ordinary course of the Company’s business since January 31, 2004 and which, individually or in the aggregate, do not or would not have a Material Adverse Effect on the Company.generally accepted accounting principles;
(h) The Company has all franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals necessary for the conduct of its business as now being conducted by it unless the failure to possess such franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(i) 5.4 The Company has filed all documents that the Company was required to file under the Securities Exchange Act of 1934 as amended (the “Exchange Act”) during the 36 months preceding the date of this Agreement (collectivelyfederal, the “Securities Filings”)state, county and those Securities Filingslocal income, as amendedfranchise, complied as to form in all material respects with the SEC’s requirements as of their respective filing datesproperty and other tax returns, and the information contained therein as of the date thereof did not contain any untrue statement of a material fact forms or omit to state a material fact reports which are due or required to be stated therein filed by it prior to the date hereof, and has paid or necessary made adequate provisions for the payment of all taxes, fees or assessments which have or may become due pursuant to make the statements therein in light such returns or pursuant to any assessments received;
5.5 The respective books of account and other records of the circumstances under which they were made not misleading.
(j) The Company has complied are true, complete and will comply with correct, and accurately present or reflect all applicable federal and state securities laws in connection with the offer, issuance and sale of all securities of the Company, including the Shares. Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell or solicit offers to buy the Shares or similar securities to, or solicit offers with respect thereto from, or enter transactions entered into any preliminary conversations or negotiations relating thereto with, any person (other than the Investor and Sky Capital Holdings Ltd.), so as to bring the issuance and sale of the Shares under the registration provisions of the Securities Act and applicable state securities laws. Neither the Company nor any of its affiliates, nor any person acting omits or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Shares.
(k) Since January 31, 2004, there has not been: any change in the assets, liabilities, financial condition or operating results of he Company from that reflected in the Current Securities Filings, including the financial statements contained therein, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse.
(l) Except as reflected in the Current Securities Filings, there are no actions, suits, proceedings or investigations pending or, to the Company’s knowledge, threatened against, by the Company or its properties (not, to the Company’s knowledge against any of the officers or directors of the Company) before any court, arbitrator or governmental agency which, in the case of actions, suits, proceedings or investigations pending or threatened against officers or directors of the Company, either in any case or in the aggregate, might have a Material Adverse Effect on the Company or its business and properties, and none of which questions the validity of the Agreement, the right of the Company to enter into the Agreement or the Related Agreements or consummate the transactions contemplated hereby or thereby, or any action taken or to be taken in connection herewith, nor is the Company aware that there is a reasonable basis for any of the foregoing.
(m) The Company has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Company, any liability for brokerage or finder’s fees or agent’s commissions or any similar charges in connection with this Agreement and the Related Agreements.
(n) The Company has fully provided Investor with all the information which Investor has requested for deciding whether to acquire the Shares and all information which the Company believes is reasonably necessary to enable Investor to make such decision. No representation or warranty of the Company contained in this Agreement and the Related Agreements and the exhibits and schedules attached hereto and theretohas been a party, any certificate furnished or to which its properties and assets may be furnished to Investor at the Closing or other written information furnished to the Investor or their counsel in connection with the transactions contemplated by this Agreement and the Related Agreements contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. There is no fact known to the Company that has not been disclosed herein or in the Related Agreements, or in any other agreement, document or written statement furnished by the Company to the Investor in connection with the transactions contemplated hereby and thereby which is specific to the Company, as opposed to the industry in which the Company operates, and which materially adversely affects or is reasonably likely to materially and adversely affect the business, properties, assets or financial condition of the Companysubject;
Appears in 1 contract
Warranties and Representations of the Company. Except as set forth in the attached Schedule of Exceptions, (“Schedule”) or in the Current Securities Filings, the The Company hereby represents and warrants to Investor the holders of the Notes as followsof the Effective Date:
(a) The Company the Company, is a corporation duly incorporated organized, validly existing and in good standing under the laws in its jurisdiction of New Jersey and has all requisite corporate authority to own, lease and operate its properties and assets and to carry on its business as now being conducted. The Company is duly qualified or licensed as a foreign corporation and is in good standing in all jurisdictions where the nature of its business or property makes such qualification or licensing necessary and where the failure to do so would have a material adverse effect on its condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects of the Company and its subsidiaries, taken as a whole (hereinafter a “Material Adverse Effect”).organization;
(b) The the Company will have, at has the Closing Date, all requisite legal and corporate power to execute and deliver enter into this Agreement, the Registration Rights Agreement and the Investor Rights Agreement (the Registration Rights Agreement and the Investor Rights Agreement are hereinafter collectively referred to as the “Related Agreements”) Amendment and to consummate any other transactions contemplated by the terms of this Agreement and the Related Agreements, including the delivery of certificate evidencing the Shares being purchased and to carry out and perform its obligations under the terms of this Agreement and the Related Agreements.hereunder;
(c) (i) The execution and delivery of the Agreement and Related Agreements by the Company and the consummation by it of the transactions contemplated hereby and thereby have this Amendment has been duly authorized by all necessary corporate action and no further consent or authorization on the part of the Company or and its Board of Directors or stockholders is requiredgeneral partner, and (ii) the Agreement and Related Agreements have been duly executed and delivered by the Companythis Amendment constitutes a legal, and at the Closing shall constitute valid and binding obligations obligation of the Company enforceable against the Company in accordance with their respective its terms, except as such enforceability may be limited by by
(i) applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership moratorium or other similar laws relating to, or affecting generally the enforcement ofof creditors' rights generally, creditor’s rights and remedies or by other equitable and
(ii) general principles of general applicationequity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(d) The authorized capital stock of neither the Company is as set forth in the Current Securities Filings. Immediately prior to the Closing of this transaction and a similar transaction with an affiliate of Purchaser, there were 13,636,358 shares of Common Stock outstanding and an additional 203,030 shares of Common Stock will be issued in a private transaction closing contemporaneously with the transactions contemplated hereby. Except as set forth in this Agreement, the Schedule or the Current Securities Filings, no options, warrants, subscriptions or purchase rights of any nature to acquire from the Company shares of capital stock or other securities are authorized, issued or outstanding, execution nor is the Company obligated under its charter documents or under any agreement by which the Company is bound to issue shares of its capital stock or other securities. There are no restrictions on the transfer of shares of capital stock of the Company other than those imposed by relevant federal and state securities laws and as otherwise contemplated by this Agreement. To the Company’s best knowledge, there are no agreements, understandings, trusts or other collaborative arrangements or understandings concerning the voting of the capital stock of the Company.
(e) The execution, delivery and performance of this Agreement and the Related Agreements by the Company and the consummation by the Company of this Amendment nor the transactions contemplated herein and therein do not and will not performance by it of its obligations hereunder or under the Note Purchase Agreement or the Notes:
(i) will adversely affect the enforceability against the Company of the Note Purchase Agreement or the Notes;
(ii) will require the taking of any action or the giving of any consent or approval by, or the making or any registration or filing with, any Governmental Authority or other person (including, without limitation, the NYSE) other than such actions, consents, approvals, registrations and filings as have heretofore been taken, given or made (as the case may be);
(iii) will violate any provision of any organizational document of the Company’s Articles Company or its general partner, or any provision of Incorporation any law, rule, regulation, order or Bylaws, decree of any Governmental Authority applicable to the Company or its general partner; or
(iiiv) conflict with, will violate or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others under any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation material agreement to which the Company, or any of its subsidiaries is a party, (iii) create or impose a lien, charge or encumbrance on any property of the Company under any agreement or any commitment to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or by which any of their respective properties or assets are bound, or (iv) result in a violation of any federal, state, local or other foreign statute, rule, regulation, order, judgment or decree (including any federal or state securities laws and regulations) applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries are bound or affected, except, in all cases, for such conflicts, defaults, termination, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect.
(f) The financial statements of the Company comply as to form in all material respects with applicable accounting requirements under GAAP or other applicable rules and regulations with respect thereto including the rules and regulations of the Securities and Exchange Commission (“SEC”). Such financial statements have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes is or may be condensed bound or summary statements), and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of operations and cash flows for the 3 periods then ended (subject, will result in the case creation or imposition of unaudited statements, to normal year-end audit adjustments). For purposes hereof, any Lien on the term “GAAP” shall mean the United States Generally Accepted Accounting Principles as those conventions, rules and procedures are determined by the Financial Accounting Standard Board and its predecessor properties or successor agencies.
(g) The Company has no liabilities, obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that would be required to be disclosed on a balance sheet of the Company or any subsidiary (including the notes thereto) in conformity with GAAP which are not disclosed in the Schedule, other than those incurred in the ordinary course assets of the Company’s business since January 31, 2004 and which, individually or in the aggregate, do not or would not have a Material Adverse Effect on the Company.;
(he) The Company has all franchises, permits, licenses, consents and neither this Amendment nor any certificate furnished in connection herewith nor any other governmental document or regulatory authorizations and approvals necessary for statement furnished to the conduct of its business as now being conducted by it unless the failure to possess such franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(i) The Company has filed all documents that the Company was required to file under the Securities Exchange Act of 1934 as amended (the “Exchange Act”) during the 36 months preceding the date of this Agreement (collectively, the “Securities Filings”), and those Securities Filings, as amended, complied as to form in all material respects with the SEC’s requirements as of their respective filing dates, and the information contained therein as holders of the date thereof did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading.
(j) The Company has complied and will comply with all applicable federal and state securities laws Notes in connection with the offer, issuance and sale of all securities of the Company, including the Shares. Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell or solicit offers to buy the Shares or similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any person (other than the Investor and Sky Capital Holdings Ltd.), so as to bring the issuance and sale of the Shares under the registration provisions of the Securities Act and applicable state securities laws. Neither the Company nor any of its affiliates, nor any person acting omits or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Shares.
(k) Since January 31, 2004, there has not been: any change in the assets, liabilities, financial condition or operating results of he Company from that reflected in the Current Securities Filings, including the financial statements contained therein, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse.
(l) Except as reflected in the Current Securities Filings, there are no actions, suits, proceedings or investigations pending or, to the Company’s knowledge, threatened against, the Company or its properties (not, to the Company’s knowledge against any of the officers or directors of the Company) before any court, arbitrator or governmental agency which, in the case of actions, suits, proceedings or investigations pending or threatened against officers or directors of the Company, either in any case or in the aggregate, might have a Material Adverse Effect on the Company or its business and properties, and none of which questions the validity of the Agreement, the right of the Company to enter into the Agreement or the Related Agreements or consummate the transactions amendments contemplated hereby or thereby, or any action taken or to be taken in connection herewith, nor is the Company aware that there is a reasonable basis for any of the foregoing.
(m) The Company has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Company, any liability for brokerage or finder’s fees or agent’s commissions or any similar charges in connection with this Agreement and the Related Agreements.
(n) The Company has fully provided Investor with all the information which Investor has requested for deciding whether to acquire the Shares and all information which the Company believes is reasonably necessary to enable Investor to make such decision. No representation or warranty of the Company contained in this Agreement and the Related Agreements and the exhibits and schedules attached hereto and thereto, any certificate furnished or to be furnished to Investor at the Closing or other written information furnished to the Investor or their counsel in connection with the transactions contemplated by this Agreement and the Related Agreements contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or and therein not misleading in light of the circumstances under which they were made. There misleading; there is no fact known to the Company that is peculiar to the Company (excluding facts of a general, publicly known, economic or political nature) that has had, or so far as the Company can now reasonably foresee, could reasonably be expected to have, a Material Adverse Effect and that has not been disclosed set forth herein or in the Related Agreementsother documents, certificates and other writings delivered to you by or in any other agreement, document or written statement furnished by on behalf of the Company to the Investor specifically for use in connection with the transactions contemplated hereby and thereby which is specific to hereby; and
(f) there exists no Default, Event of Acceleration or Event of Default under the Company, as opposed to the industry in which the Company operates, and which materially adversely affects or is reasonably likely to materially and adversely affect the business, properties, assets or financial condition of the CompanyNote Purchase Agreement.
Appears in 1 contract
Warranties and Representations of the Company. Except as set forth in the attached Schedule of Exceptions, (“Schedule”) or in the Current Securities Filings, the The Company hereby represents and warrants to Investor as followsthat:
(a) The Company is a corporation duly incorporated organized, validly existing and in good standing under the laws of New Jersey and has all requisite corporate authority to own, lease and operate its properties and assets and to carry on its business as now being conducted. The Company is duly qualified or licensed as a foreign corporation and is in good standing in all jurisdictions where the nature State of its business or property makes such qualification or licensing necessary and where the failure to do so would have a material adverse effect on its condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects of the Company and its subsidiaries, taken as a whole (hereinafter a “Material Adverse Effect”)Washington.
(b) The Company will haveBoard has authorized or will, at prior to the Closing DateDate authorize the execution, all requisite legal delivery, and corporate power to execute and deliver this Agreement, the Registration Rights Agreement and the Investor Rights Agreement (the Registration Rights Agreement and the Investor Rights Agreement are hereinafter collectively referred to as the “Related Agreements”) and to consummate any other transactions contemplated by the terms performance of this Agreement and the Related Agreements, including the delivery of certificate evidencing the Shares being purchased and to carry out and perform its obligations under the terms of this Agreement and the Related Agreements.
(c) (i) The execution and delivery of the Agreement and Related Agreements by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary thereby. No other corporate action is necessary to authorize such execution, delivery and no further consent or authorization of the Company or its Board of Directors or stockholders is requiredperformance, and (ii) the upon such execution and delivery, this Agreement shall constitute a valid and Related Agreements have been duly executed and delivered by binding obligation of the Company, and at the Closing shall constitute valid and binding obligations of the Company enforceable against the Company in accordance with their respective its terms. The Board has authorized or will, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application.
(d) The authorized capital stock of the Company is as set forth in the Current Securities Filings. Immediately prior to the Closing Date, authorize the issuance and delivery of the Shares in accordance with this transaction Agreement.
(c) The Shares to be issued and a similar transaction sold by the Company pursuant to this Agreement, when issued in accordance with an affiliate the provisions hereof, will be validly issued by the Company, fully paid and nonassessable shares of Purchaserthe Company, there were 13,636,358 and no shareholder of the Company has any preemptive rights to subscribe for any such Shares. The shares of Common Stock outstanding and an additional 203,030 shares issuable upon conversion of Common Stock the Shares when issued in accordance with the Certificate of Designation, will be validly issued in a private transaction closing contemporaneously with the transactions contemplated hereby. Except as set forth in this Agreement, the Schedule or the Current Securities Filings, no options, warrants, subscriptions or purchase rights of any nature to acquire from the Company shares of capital stock or other securities are authorized, issued or outstanding, nor is the Company obligated under its charter documents or under any agreement by which the Company is bound to issue shares of its capital stock or other securities. There are no restrictions on the transfer of shares of capital stock of the Company other than those imposed by relevant federal and state securities laws and as otherwise contemplated by this Agreement. To the Company’s best knowledge, there are no agreements, understandings, trusts or other collaborative arrangements or understandings concerning the voting of the capital stock fully paid and nonassessable shares of the Company.
(ed) Except with respect to filings made in connection with exemptions from registration under state or federal securities laws, the creation, authorization, issuance, offer and sale of the Shares do not require any consent, approval or authorization of, or filing, registration or qualification with, any governmental authority on the part of the Company or the vote, consent or approval in any manner of the holders of any security of the Company as a condition to the execution and delivery of this Agreement or the creation, authorization, issuance, offer and sale of the Shares. The execution, execution and delivery and performance by the Company of this Agreement and the Related Agreements by the Company and the consummation performance by the Company of the transactions contemplated herein and therein do not and its obligations hereunder will not violate (i) violate any provision the terms and conditions of the Company’s Articles or the Bylaws of Incorporation or Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company, or any of its subsidiaries is a party, (iii) create or impose a lien, charge or encumbrance on any property of the Company under any agreement or any commitment instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries it is bound or by which any (ii) subject to the accuracy of their respective properties or assets are boundyour representations and warranties contained in Section 5 hereof, or (iv) result in a violation of any federal, state, local or other foreign statute, rule, regulation, order, judgment or decree (including any federal or state securities laws and regulations) applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries are bound or affected, except, in all cases, for such conflicts, defaults, termination, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effectlaw.
(f) The financial statements of the Company comply as to form in all material respects with applicable accounting requirements under GAAP or other applicable rules and regulations with respect thereto including the rules and regulations of the Securities and Exchange Commission (“SEC”). Such financial statements have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of operations and cash flows for the 3 periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). For purposes hereof, the term “GAAP” shall mean the United States Generally Accepted Accounting Principles as those conventions, rules and procedures are determined by the Financial Accounting Standard Board and its predecessor or successor agencies.
(g) The Company has no liabilities, obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that would be required to be disclosed on a balance sheet of the Company or any subsidiary (including the notes thereto) in conformity with GAAP which are not disclosed in the Schedule, other than those incurred in the ordinary course of the Company’s business since January 31, 2004 and which, individually or in the aggregate, do not or would not have a Material Adverse Effect on the Company.
(h) The Company has all franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals necessary for the conduct of its business as now being conducted by it unless the failure to possess such franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(i) The Company has filed all documents that the Company was required to file under the Securities Exchange Act of 1934 as amended (the “Exchange Act”) during the 36 months preceding the date of this Agreement (collectively, the “Securities Filings”), and those Securities Filings, as amended, complied as to form in all material respects with the SEC’s requirements as of their respective filing dates, and the information contained therein as of the date thereof did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading.
(j) The Company has complied and will comply with all applicable federal and state securities laws in connection with the offer, issuance and sale of all securities of the Company, including the Shares. Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell or solicit offers to buy the Shares or similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any person (other than the Investor and Sky Capital Holdings Ltd.), so as to bring the issuance and sale of the Shares under the registration provisions of the Securities Act and applicable state securities laws. Neither the Company nor any of its affiliates, nor any person acting omits or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Shares.
(k) Since January 31, 2004, there has not been: any change in the assets, liabilities, financial condition or operating results of he Company from that reflected in the Current Securities Filings, including the financial statements contained therein, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse.
(l) Except as reflected in the Current Securities Filings, there are no actions, suits, proceedings or investigations pending or, to the Company’s knowledge, threatened against, the Company or its properties (not, to the Company’s knowledge against any of the officers or directors of the Company) before any court, arbitrator or governmental agency which, in the case of actions, suits, proceedings or investigations pending or threatened against officers or directors of the Company, either in any case or in the aggregate, might have a Material Adverse Effect on the Company or its business and properties, and none of which questions the validity of the Agreement, the right of the Company to enter into the Agreement or the Related Agreements or consummate the transactions contemplated hereby or thereby, or any action taken or to be taken in connection herewith, nor is the Company aware that there is a reasonable basis for any of the foregoing.
(m) The Company has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Company, any liability for brokerage or finder’s fees or agent’s commissions or any similar charges in connection with this Agreement and the Related Agreements.
(n) The Company has fully provided Investor with all the information which Investor has requested for deciding whether to acquire the Shares and all information which the Company believes is reasonably necessary to enable Investor to make such decision. No representation or warranty of the Company contained in this Agreement and the Related Agreements and the exhibits and schedules attached hereto and thereto, any certificate furnished or to be furnished to Investor at the Closing or other written information furnished to the Investor or their counsel in connection with the transactions contemplated by this Agreement and the Related Agreements contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. There is no fact known to the Company that has not been disclosed herein or in the Related Agreements, or in any other agreement, document or written statement furnished by the Company to the Investor in connection with the transactions contemplated hereby and thereby which is specific to the Company, as opposed to the industry in which the Company operates, and which materially adversely affects or is reasonably likely to materially and adversely affect the business, properties, assets or financial condition of the Company
Appears in 1 contract
Samples: Merger Agreement (Cobalt Group Inc)
Warranties and Representations of the Company. Except as set forth in the attached Schedule of Exceptions, (“Schedule”) or in the Current Securities Filings, the The Company hereby represents and warrants to Investor the holders of the Notes as followsof the Effective Date:
(a) The the Company is a corporation duly incorporated organized, validly existing and in good standing under the laws in its jurisdiction of New Jersey and has all requisite corporate authority to own, lease and operate its properties and assets and to carry on its business as now being conducted. The Company is duly qualified or licensed as a foreign corporation and is in good standing in all jurisdictions where the nature of its business or property makes such qualification or licensing necessary and where the failure to do so would have a material adverse effect on its condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects of the Company and its subsidiaries, taken as a whole (hereinafter a “Material Adverse Effect”).incorporation;
(b) The the Company will have, at has the Closing Date, all requisite legal and corporate power to execute and deliver enter into this Agreement, the Registration Rights Agreement and the Investor Rights Agreement (the Registration Rights Agreement and the Investor Rights Agreement are hereinafter collectively referred to as the “Related Agreements”) Amendment and to consummate any other transactions contemplated by the terms of this Agreement and the Related Agreements, including the delivery of certificate evidencing the Shares being purchased and to carry out and perform its obligations under the terms of this Agreement and the Related Agreements.hereunder;
(c) (i) The execution and delivery of the Agreement and Related Agreements by the Company and the consummation by it of the transactions contemplated hereby and thereby have this Amendment has been duly authorized by all necessary corporate action and no further consent or authorization on the part of the Company or its Board of Directors or stockholders is required, and (ii) the Agreement and Related Agreements have been duly executed and delivered by the Companythis Amendment constitutes a legal, and at the Closing shall constitute valid and binding obligations obligation of the Company enforceable against the Company in accordance with their respective its terms, except as such enforceability may be limited by SPECTRAN CORPORATION FIRST AMENDMENT (i) applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership moratorium or other similar laws relating to, or affecting generally the enforcement ofof creditors' rights generally, creditor’s rights and remedies or by other equitable and
(ii) general principles of general application.equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(d) The authorized capital stock of neither the Company is as set forth in the Current Securities Filings. Immediately prior to the Closing of this transaction and a similar transaction with an affiliate of Purchaser, there were 13,636,358 shares of Common Stock outstanding and an additional 203,030 shares of Common Stock will be issued in a private transaction closing contemporaneously with the transactions contemplated hereby. Except as set forth in this Agreement, the Schedule execution or the Current Securities Filings, no options, warrants, subscriptions or purchase rights of any nature to acquire from the Company shares of capital stock or other securities are authorized, issued or outstanding, nor is the Company obligated under its charter documents or under any agreement by which the Company is bound to issue shares of its capital stock or other securities. There are no restrictions on the transfer of shares of capital stock of the Company other than those imposed by relevant federal and state securities laws and as otherwise contemplated by this Agreement. To the Company’s best knowledge, there are no agreements, understandings, trusts or other collaborative arrangements or understandings concerning the voting of the capital stock of the Company.
(e) The execution, delivery and performance of this Agreement and the Related Agreements by the Company and the consummation by the Company of this Amendment nor the transactions contemplated herein and therein do not and will not performance by the Company of its obligations hereunder or under the Financing Documents:
(i) will adversely affect the enforceability against the Company of the Financing Documents;
(ii) will require the taking of any action or the giving of any consent or approval by, or the making or any registration or filing with, any Governmental Authority or other person other than such actions, consents, approvals, registrations and filings as have heretofore been taken, given or made (as the case may be);
(iii) will violate any provision of the Company’s Articles any organizational document of Incorporation or Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company, or any provision of its subsidiaries is any law, rule, regulation, order or decree of any Governmental Authority applicable to the Company; or
(iv) will violate or constitute a party, (iii) create or impose a lien, charge or encumbrance on any property of the Company default under any material agreement or any commitment to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or by which any of their respective properties Properties or assets are is or may be bound, or (iv) will result in a violation the creation or imposition of any federal, state, local Lien on the Properties or other foreign statute, rule, regulation, order, judgment or decree (including any federal or state securities laws and regulations) applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries are bound or affected, except, in all cases, for such conflicts, defaults, termination, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect.
(f) The financial statements of the Company comply as to form in all material respects with applicable accounting requirements under GAAP or other applicable rules and regulations with respect thereto including the rules and regulations of the Securities and Exchange Commission (“SEC”). Such financial statements have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of operations and cash flows for the 3 periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). For purposes hereof, the term “GAAP” shall mean the United States Generally Accepted Accounting Principles as those conventions, rules and procedures are determined by the Financial Accounting Standard Board and its predecessor or successor agencies.
(g) The Company has no liabilities, obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that would be required to be disclosed on a balance sheet of the Company or any subsidiary (including the notes thereto) in conformity with GAAP which are not disclosed in the Schedule, other than those incurred in the ordinary course assets of the Company’s business since January 31, 2004 and which, individually or in the aggregate, do not or would not have a Material Adverse Effect on the Company.
(h) The Company has all franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals necessary for the conduct of its business as now being conducted by it unless the failure to possess such franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.;
(i) The Company has filed all documents that neither this Amendment nor any certificate furnished in connection herewith nor any other document or statement furnished to the Company was required to file under the Securities Exchange Act of 1934 as amended (the “Exchange Act”) during the 36 months preceding the date of this Agreement (collectively, the “Securities Filings”), and those Securities Filings, as amended, complied as to form in all material respects with the SEC’s requirements as of their respective filing dates, and the information contained therein as holders of the date thereof did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading.
(j) The Company has complied and will comply with all applicable federal and state securities laws Notes in connection with the offer, issuance and sale of all securities of the Company, including the Shares. Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell or solicit offers to buy the Shares or similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any person (other than the Investor and Sky Capital Holdings Ltd.), so as to bring the issuance and sale of the Shares under the registration provisions of the Securities Act and applicable state securities laws. Neither the Company nor any of its affiliates, nor any person acting omits or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Shares.
(k) Since January 31, 2004, there has not been: any change in the assets, liabilities, financial condition or operating results of he Company from that reflected in the Current Securities Filings, including the financial statements contained therein, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse.
(l) Except as reflected in the Current Securities Filings, there are no actions, suits, proceedings or investigations pending or, to the Company’s knowledge, threatened against, the Company or its properties (not, to the Company’s knowledge against any of the officers or directors of the Company) before any court, arbitrator or governmental agency which, in the case of actions, suits, proceedings or investigations pending or threatened against officers or directors of the Company, either in any case or in the aggregate, might have a Material Adverse Effect on the Company or its business and properties, and none of which questions the validity of the Agreement, the right of the Company to enter into the Agreement or the Related Agreements or consummate the transactions amendments contemplated hereby or thereby, or any action taken or to be taken in connection herewith, nor is the Company aware that there is a reasonable basis for any of the foregoing.
(m) The Company has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Company, any liability for brokerage or finder’s fees or agent’s commissions or any similar charges in connection with this Agreement and the Related Agreements.
(n) The Company has fully provided Investor with all the information which Investor has requested for deciding whether to acquire the Shares and all information which the Company believes is reasonably necessary to enable Investor to make such decision. No representation or warranty of the Company contained in this Agreement and the Related Agreements and the exhibits and schedules attached hereto and thereto, any certificate furnished or to be furnished to Investor at the Closing or other written information furnished to the Investor or their counsel in connection with the transactions contemplated by this Agreement and the Related Agreements contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or and therein not misleading in light of the circumstances under which they were made. There misleading;
(ii) there is no fact known to the Company that has had or, so far as the Company can now reasonably foresee, could reasonably be expected to have, a Material Adverse Effect that has not been disclosed herein publicly disclosed; and
(f) immediately after the effectiveness hereof and after giving effect hereto, there exists no Default or in the Related Agreements, or in any other agreement, document or written statement furnished by the Company to the Investor in connection with the transactions contemplated hereby and thereby which is specific to the Company, as opposed to the industry in which the Company operates, and which materially adversely affects or is reasonably likely to materially and adversely affect the business, properties, assets or financial condition Event of the CompanyDefault.
Appears in 1 contract
Warranties and Representations of the Company. Except as set forth in the attached Schedule of Exceptions, (“Schedule”) or in the Current Securities Filings, the The Company hereby represents and warrants to Investor as followsthat:
(a) The Company is a corporation duly incorporated organized, validly existing and in good standing under the laws of New Jersey the State of Delaware. Annexed hereto as Exhibits A and has all requisite corporate authority to ownB, lease respectively, are true and operate its properties complete copies of the Certificate of Incorporation and assets and to carry on its business the Bylaws as now being conducted. The Company is duly qualified or licensed as a foreign corporation and is in good standing in all jurisdictions where the nature of its business or property makes such qualification or licensing necessary and where the failure to do so would have a material adverse effect on its condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects of the Company and its subsidiaries, taken as a whole (hereinafter a “Material Adverse Effect”)date hereof.
(b) The Company will have, at has been recently formed to enter into the Asset Purchase Agreement and to consummate the transactions contemplated thereby and has not conducted any business other than in connection therewith and certain start-up activities. As of the Closing Date, all requisite legal the Company will have no assets or liabilities other than those incurred in connection with the Company's incorporation and corporate power the Company's start-up activities, and those acquired or assumed pursuant to execute and deliver this Agreement, the Registration Rights Asset Purchase Agreement and those acquired or incurred in connection with the Investor Rights Agreement (the Registration Rights Agreement and the Investor Rights Agreement are hereinafter collectively referred to as the “Related Agreements”) and to consummate any other transactions contemplated by the terms of this Agreement and the Related Agreements, including the delivery of certificate evidencing the Shares being purchased and to carry out and perform its obligations under the terms of this Agreement and the Related Agreementsthereby.
(c) (i) The execution and delivery Board of Directors of the Agreement Company (the "Board") has authorized the execution, delivery, and Related Agreements by the Company performance of this Agreement, and the consummation by it each of the transactions contemplated hereby and thereby have been duly authorized by all necessary hereby. No other corporate action is necessary to authorize such execution, delivery and no further consent or authorization of the Company or its Board of Directors or stockholders is requiredperformance, and (ii) the upon such execution and delivery, this Agreement shall constitute a valid and Related Agreements have been duly executed and delivered by binding obligation of the Company, and at the Closing shall constitute valid and binding obligations of the Company enforceable against the Company in accordance with their respective its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally . The Board has authorized the enforcement of, creditor’s rights issuance and remedies or by other equitable principles delivery of general applicationthe Shares in accordance with this Agreement.
(d) The authorized capital stock Shares to be issued and sold by the Company pursuant to this Agreement, when issued in accordance with the provisions hereof, will be validly issued by the Company, fully paid and nonassessable shares of the Company, and no stockholder of the Company is as set forth in the Current Securities Filings. Immediately prior has any preemptive rights to the Closing of this transaction and a similar transaction with an affiliate of Purchaser, there were 13,636,358 shares of Common Stock outstanding and an additional 203,030 shares of Common Stock will be issued in a private transaction closing contemporaneously with the transactions contemplated hereby. Except as set forth in this Agreement, the Schedule or the Current Securities Filings, no options, warrants, subscriptions or purchase rights of subscribe for any nature to acquire from the Company shares of capital stock or other securities are authorized, issued or outstanding, nor is the Company obligated under its charter documents or under any agreement by which the Company is bound to issue shares of its capital stock or other securities. There are no restrictions on the transfer of shares of capital stock of the Company other than those imposed by relevant federal and state securities laws and as otherwise contemplated by this Agreement. To the Company’s best knowledge, there are no agreements, understandings, trusts or other collaborative arrangements or understandings concerning the voting of the capital stock of the Companysuch Shares.
(e) The executioncreation, authorization, issuance, offer and sale of the Shares do not require any consent, approval or authorization of, or filing, registration or qualification with, any governmental authority on the part of the Company or the vote, consent or approval in any manner of the holders of any Security (as hereinafter defined) of the Company as a condition to the execution and delivery of this Agreement or the creation, authorization, issuance, offer and performance sale of the Shares. The execution and delivery by the Company of this Agreement and the Related Agreements by the Company and the consummation performance by the Company of the transactions contemplated herein and therein do not and its obligations hereunder will not violate (i) violate any provision the terms and conditions of the Company’s Articles Certificate of Incorporation or Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or lapse the Bylaws of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company, or any of its subsidiaries is a party, (iii) create or impose a lien, charge or encumbrance on any property of the Company under any agreement or any commitment instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries it is bound or by which any (ii) subject to the accuracy of their respective properties or assets are boundyour representations and warranties contained in Section 5 hereof, or (iv) result in a violation of any federal, state, local or other foreign statute, rule, regulation, order, judgment or decree (including any federal or state securities laws and regulations) applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries are bound or affected, except, in all cases, for such conflicts, defaults, termination, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effectlaw.
(f) The financial statements of the Company comply as to form in all material respects with applicable accounting requirements under GAAP or other applicable rules and regulations with respect thereto including the rules and regulations of the Securities and Exchange Commission (“SEC”). Such financial statements have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of operations and cash flows for the 3 periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). For purposes hereof, the term “GAAP” shall mean the United States Generally Accepted Accounting Principles as those conventions, rules and procedures are determined by the Financial Accounting Standard Board and its predecessor or successor agencies.
(g) The Company has no liabilities, obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that would be required to be disclosed on a balance sheet of the Company or any subsidiary (including the notes thereto) in conformity with GAAP which are not disclosed in the Schedule, other than those incurred in the ordinary course of the Company’s business since January 31, 2004 and which, individually or in the aggregate, do not or would not have a Material Adverse Effect on the Company.
(h) The Company has all franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals necessary for the conduct of its business as now being conducted by it unless the failure to possess such franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(i) The Company has filed all documents that the Company was required to file under the Securities Exchange Act of 1934 as amended (the “Exchange Act”) during the 36 months preceding the date of this Agreement (collectively, the “Securities Filings”), and those Securities Filings, as amended, complied as to form in all material respects with the SEC’s requirements as of their respective filing dates, and the information contained therein as of the date thereof did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading.
(j) The Company has complied and will comply with all applicable federal and state securities laws in connection with the offer, issuance and sale of all securities of the Company, including the Shares. Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell or solicit offers to buy the Shares or similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any person (other than the Investor and Sky Capital Holdings Ltd.), so as to bring the issuance and sale of the Shares under the registration provisions of the Securities Act and applicable state securities laws. Neither the Company nor any of its affiliates, nor any person acting omits or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Shares.
(k) Since January 31, 2004, there has not been: any change in the assets, liabilities, financial condition or operating results of he Company from that reflected in the Current Securities Filings, including the financial statements contained therein, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse.
(l) Except as reflected in the Current Securities Filings, there are no actions, suits, proceedings or investigations pending or, to the Company’s knowledge, threatened against, the Company or its properties (not, to the Company’s knowledge against any of the officers or directors of the Company) before any court, arbitrator or governmental agency which, in the case of actions, suits, proceedings or investigations pending or threatened against officers or directors of the Company, either in any case or in the aggregate, might have a Material Adverse Effect on the Company or its business and properties, and none of which questions the validity of the Agreement, the right of the Company to enter into the Agreement or the Related Agreements or consummate the transactions contemplated hereby or thereby, or any action taken or to be taken in connection herewith, nor is the Company aware that there is a reasonable basis for any of the foregoing.
(m) The Company has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Company, any liability for brokerage or finder’s fees or agent’s commissions or any similar charges in connection with this Agreement and the Related Agreements.
(n) The Company has fully provided Investor with all the information which Investor has requested for deciding whether to acquire the Shares and all information which the Company believes is reasonably necessary to enable Investor to make such decision. No representation or warranty of the Company contained in this Agreement and the Related Agreements and the exhibits and schedules attached hereto and thereto, any certificate furnished or to be furnished to Investor at the Closing or other written information furnished to the Investor or their counsel in connection with the transactions contemplated by this Agreement and the Related Agreements contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. There is no fact known to the Company that has not been disclosed herein or in the Related Agreements, or in any other agreement, document or written statement furnished by the Company to the Investor in connection with the transactions contemplated hereby and thereby which is specific to the Company, as opposed to the industry in which the Company operates, and which materially adversely affects or is reasonably likely to materially and adversely affect the business, properties, assets or financial condition of the Company
Appears in 1 contract
Warranties and Representations of the Company. Except as set forth in the attached Schedule of Exceptions, (“Schedule”) or in the Current Securities Filings, the The Company hereby represents and --------------------------------------------- warrants to Investor as followsthat:
(a) The Company is a corporation duly incorporated organized, validly existing and in good standing under the laws of New Jersey the State of Delaware. Annexed hereto as Exhibits A and has all requisite corporate authority to ownB, lease respectively, are true and operate its properties complete copies of the Certificate of Incorporation (including the Certificate of Designation) and assets and to carry on its business the Amended Bylaws as now being conducted. The Company is duly qualified or licensed as a foreign corporation and is in good standing in all jurisdictions where the nature of its business or property makes such qualification or licensing necessary and where the failure to do so would have a material adverse effect on its condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects of the Company and its subsidiaries, taken as a whole (hereinafter a “Material Adverse Effect”)date hereof.
(b) The Board of Directors of the Company will have(the "Board") has authorized the execution, at the Closing Datedelivery, all requisite legal and corporate power to execute and deliver performance of this Agreement, the Registration Rights Agreement and the Investor Rights Agreement (the Registration Rights Agreement and the Investor Rights Agreement are hereinafter collectively referred to as the “Related Agreements”) and to consummate any other transactions contemplated by the terms of this Agreement and the Related Agreements, including the delivery of certificate evidencing the Shares being purchased and to carry out and perform its obligations under the terms of this Agreement and the Related Agreements.
(c) (i) The execution and delivery of the Agreement and Related Agreements by the Company and the consummation by it each of the transactions contemplated hereby and thereby have been duly authorized by all necessary hereby. No other corporate action is necessary to authorize such execution, delivery and no further consent or authorization of the Company or its Board of Directors or stockholders is requiredperformance, and (ii) the upon such execution and delivery, this Agreement shall constitute a valid and Related Agreements have been duly executed and delivered by binding obligation of the Company, and at the Closing shall constitute valid and binding obligations of the Company enforceable against the Company in accordance with their respective its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally . The Board has authorized the enforcement of, creditor’s rights issuance and remedies or by other equitable principles delivery of general applicationthe Securities in accordance with this Agreement.
(dc) The authorized capital stock Shares and Warrants to be issued and sold by the Company pursuant to this Agreement, when issued in accordance with the provisions hereof, will be validly issued by the Company, fully paid and nonassessable shares and fully paid and duly executed warrants, respectively, of the Company is as set forth Company. Upon issuance in accordance with the Current Securities Filings. Immediately prior to terms of the Closing of this transaction and a similar transaction with an affiliate of PurchaserWarrants, there were 13,636,358 the shares of Common Stock outstanding and an additional 203,030 shares issuable upon the exercise of Common Stock the Warrants will be issued in a private transaction closing contemporaneously with the transactions contemplated hereby. Except as set forth in this Agreement, the Schedule or the Current Securities Filings, no options, warrants, subscriptions or purchase rights of any nature to acquire from the Company shares of capital stock or other securities are duly authorized, validly issued or outstanding, nor is the Company obligated under its charter documents or under any agreement by which the Company is bound to issue shares of its capital stock or other securities. There are no restrictions on the transfer of shares of capital stock of the Company other than those imposed by relevant federal and state securities laws and as otherwise contemplated by this Agreement. To the Company’s best knowledge, there are no agreements, understandings, trusts or other collaborative arrangements or understandings concerning the voting of the capital stock fully paid and nonassessable shares of the Company.
(ed) Except as has been obtained, the creation, authorization, issuance, offer and sale of the Securities do not require any consent, approval or authorization of, or filing, registration or qualification with, any governmental authority on the part of the Company or the vote, consent or approval in any manner of the holders of any security (as defined in Section 2(1) of the Securities Act) of the Company as a condition to the execution and delivery of this Agreement or the creation, authorization, issuance, offer and sale of the Securities. The execution, execution and delivery and performance by the Company of this Agreement and the Related Agreements by the Company and the consummation performance by the Company of the transactions contemplated herein and therein do not and its obligations hereunder will not violate (i) violate any provision the terms and conditions of the Company’s Articles Certificate of Incorporation or Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or lapse the Amended Bylaws of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company, or any of its subsidiaries is a party, (iii) create or impose a lien, charge or encumbrance on any property of the Company under any agreement or any commitment instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries it is bound or by which any (ii) subject to the accuracy of their respective properties or assets are boundyour representations and warranties contained in Section 5 hereof, or (iv) result in a violation of any federal, state, local or other foreign statute, rule, regulation, order, judgment or decree (including any federal or state securities laws and regulations) applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries are bound or affected, except, in all cases, for such conflicts, defaults, termination, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effectlaw.
(f) The financial statements of the Company comply as to form in all material respects with applicable accounting requirements under GAAP or other applicable rules and regulations with respect thereto including the rules and regulations of the Securities and Exchange Commission (“SEC”). Such financial statements have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company and its subsidiaries as of the dates thereof and the results of operations and cash flows for the 3 periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). For purposes hereof, the term “GAAP” shall mean the United States Generally Accepted Accounting Principles as those conventions, rules and procedures are determined by the Financial Accounting Standard Board and its predecessor or successor agencies.
(g) The Company has no liabilities, obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that would be required to be disclosed on a balance sheet of the Company or any subsidiary (including the notes thereto) in conformity with GAAP which are not disclosed in the Schedule, other than those incurred in the ordinary course of the Company’s business since January 31, 2004 and which, individually or in the aggregate, do not or would not have a Material Adverse Effect on the Company.
(h) The Company has all franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals necessary for the conduct of its business as now being conducted by it unless the failure to possess such franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(i) The Company has filed all documents that the Company was required to file under the Securities Exchange Act of 1934 as amended (the “Exchange Act”) during the 36 months preceding the date of this Agreement (collectively, the “Securities Filings”), and those Securities Filings, as amended, complied as to form in all material respects with the SEC’s requirements as of their respective filing dates, and the information contained therein as of the date thereof did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading.
(j) The Company has complied and will comply with all applicable federal and state securities laws in connection with the offer, issuance and sale of all securities of the Company, including the Shares. Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell or solicit offers to buy the Shares or similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any person (other than the Investor and Sky Capital Holdings Ltd.), so as to bring the issuance and sale of the Shares under the registration provisions of the Securities Act and applicable state securities laws. Neither the Company nor any of its affiliates, nor any person acting omits or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Shares.
(k) Since January 31, 2004, there has not been: any change in the assets, liabilities, financial condition or operating results of he Company from that reflected in the Current Securities Filings, including the financial statements contained therein, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse.
(l) Except as reflected in the Current Securities Filings, there are no actions, suits, proceedings or investigations pending or, to the Company’s knowledge, threatened against, the Company or its properties (not, to the Company’s knowledge against any of the officers or directors of the Company) before any court, arbitrator or governmental agency which, in the case of actions, suits, proceedings or investigations pending or threatened against officers or directors of the Company, either in any case or in the aggregate, might have a Material Adverse Effect on the Company or its business and properties, and none of which questions the validity of the Agreement, the right of the Company to enter into the Agreement or the Related Agreements or consummate the transactions contemplated hereby or thereby, or any action taken or to be taken in connection herewith, nor is the Company aware that there is a reasonable basis for any of the foregoing.
(m) The Company has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Company, any liability for brokerage or finder’s fees or agent’s commissions or any similar charges in connection with this Agreement and the Related Agreements.
(n) The Company has fully provided Investor with all the information which Investor has requested for deciding whether to acquire the Shares and all information which the Company believes is reasonably necessary to enable Investor to make such decision. No representation or warranty of the Company contained in this Agreement and the Related Agreements and the exhibits and schedules attached hereto and thereto, any certificate furnished or to be furnished to Investor at the Closing or other written information furnished to the Investor or their counsel in connection with the transactions contemplated by this Agreement and the Related Agreements contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. There is no fact known to the Company that has not been disclosed herein or in the Related Agreements, or in any other agreement, document or written statement furnished by the Company to the Investor in connection with the transactions contemplated hereby and thereby which is specific to the Company, as opposed to the industry in which the Company operates, and which materially adversely affects or is reasonably likely to materially and adversely affect the business, properties, assets or financial condition of the Company
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