Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing Date, in form and substance satisfactory to you, to the effect that: (i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus; (ii) The Company, as of the date specified in the Final Prospectus, has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus; (iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates); (iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectus) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates); (v) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (vi) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; (vii) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses (1) and (3) above that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and (viii) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, made by the Company prior to the Closing Date (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 2 contracts
Samples: Underwriting Agreement (Priceline Group Inc.), Underwriting Agreement (Priceline Group Inc.)
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives you his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final ProspectusOffering Circular;
(ii) The Company, as of the date specified in the Final ProspectusOffering Circular, has an authorized capitalization as set forth under the caption “Capitalization” in the Final ProspectusOffering Circular and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that no material liability or disability by reason of the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; , provided that such counsel shall state that he believes they believe that both you and he they are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI II hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares and as otherwise included set forth in the Disclosure Package and the Final ProspectusOffering Circular) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; , provided that such counsel shall state that he believes they believe that both you and he they are justified in relying upon such opinions and certificates);
(v) The Company and the Scheduled Subsidiaries have good and marketable title in fee simple to all real property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Offering Circular or would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole and do not interfere with the use made and proposed to be made of such property by the Company and the Scheduled Subsidiaries; and any real property and buildings held under lease by the Company and the Scheduled Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Scheduled Subsidiaries (in giving the opinion in this clause, such counsel may state that no examination of record titles for the purpose of such opinion has been made, and that they are relying upon a general review of the titles of the Company and the Scheduled Subsidiaries, upon opinions of local counsel and abstracts, reports and policies of title companies rendered or issued at or subsequent to the time of acquisition of such property by the Company or the Scheduled Subsidiaries, upon opinions of counsel to the lessors of such property and, in respect of matters of fact, upon certificates of officers of the Company or the Scheduled Subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions, abstracts, reports, policies and certificates);
(vi) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final ProspectusOffering Circular, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final ProspectusOffering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vivii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture, except, such as may be required under the Act in connection with the shares of Stock issuable upon conversion of the Securities and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Purchasers;
(viii) The resolutions of the Board of Directors of the Company approving the issuance of the Securities have reserved the Conversion Shares for issuance;
(ix) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that which would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(viix) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses (1) and (3) above that which would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and;
(viiixi) The documents incorporated by reference in the Disclosure Package and the Final Prospectus Offering Circular or any further amendment or supplement thereto, made by the Company prior to the Closing Date such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel has they have no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(xii) No registration of the Securities under the Act, and no qualification of an indenture under the United States Trust Indenture Act of 1939 with respect thereto, is required for the offer, sale and initial resale of the Securities by the Purchasers in the manner contemplated by this Agreement; and
(xiii) The Company is not, and after giving effect to the offering and sale of the Securities to be issued and sold by the Company under this Agreement and the Indenture and the application of the net proceeds from such sale as described in the Offering Circular under the caption “Use of Proceeds”, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act.
Appears in 2 contracts
Samples: Purchase Agreement (Priceline Com Inc), Purchase Agreement (Priceline Com Inc)
Xxxxx X. XxxxxxxxXxxxx, Executive Vice Vice-President and General Counsel for Chief Legal and Administrative Officer of the Company, shall have furnished to the Representatives you his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing DateTime of Delivery, in form and substance reasonably satisfactory to you, to the effect that:
(i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as Each Material Subsidiary of the date specified in the Final Prospectus, has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entitya corporation, partnership or limited liability company, as applicable, and where such term applies, is in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock or other ownership interests of each such Scheduled Material Subsidiary held by the Company have been duly authorized and validly authorized and issued, are fully paid and non-assessable nonassessable, and (except as described in the Prospectus and except for directors’ qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectusshares) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of to matters of fact facts upon certificates of officers of the Company or such Scheduled Subsidiariesits subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(ii) Each of the Company and its Material Subsidiaries has been duly qualified as a foreign corporation, partnership or limited liability company, as applicable, for the transaction of business and, to the extent such concept is applicable, is in good standing under the laws of each other jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing in any such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(iii) Each Insurance or Healthcare Subsidiary is duly organized and licensed as an insurance, healthcare, HMO or health care management company or holding company in respect thereof in its jurisdiction of incorporation, and is duly licensed or authorized as such in each other jurisdiction where it is required to be so licensed or authorized to conduct its business as described in the Prospectus, except where the failure to be so licensed or authorized could not reasonably be expected to have a Material Adverse Effect; except as otherwise described in the Prospectus, each Insurance or Healthcare Subsidiary has all other Approvals of and from all insurance or healthcare related regulatory authorities to conduct its business, except where the failure to have such Approvals could not reasonably be expected to have a Material Adverse Effect; to such counsel’s knowledge, there is no pending or threatened action, suit, proceeding or investigation that could reasonably be expected to lead to the revocation, termination or suspension of any such Approval, the revocation, termination or suspension of which would have, individually or in the aggregate, a Material Adverse Effect; and, to such counsel’s knowledge, no insurance or healthcare related regulatory agency or body has issued any order or decree impairing, restricting or prohibiting the payment of dividends by any Insurance or Healthcare Subsidiary to its parent, except (i) for any such order or decree issued in connection with the WellPoint Merger or (ii) as described in the Prospectus;
(iv) Each of the Company and its Material Subsidiaries has made all Filings with, all insurance regulatory authorities, all Federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, which are necessary to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; to such counsel’s knowledge, all such Approvals and Filings are in full force and effect, except where the failure to be so could not reasonably be expected to have a Material Adverse Effect and neither the Company nor any of its Material Subsidiaries has received any notice of any event, inquiry, investigation or proceeding that would reasonably be expected to result in the suspension, revocation or limitation of any such Approval or otherwise impose any limitation on the conduct of the business of the Company or any such subsidiary, which in either case could reasonably be expected to have a Material Adverse Effect, except as described in the Prospectus;
(v) To the best of such counsel’s knowledge, there is no legal or governmental proceeding pending or, to such counsel’s knowledge and other than as set forth disclosed to you, currently being threatened challenging the offering of the Securities by BAS;
(vi) None of the Company or any of its subsidiaries is or, after giving effect to the offering and sale of the Securities and the application of the proceeds of the sale of Securities as described in the Disclosure Package Prospectus, will be an “investment company”, as such term is defined in the Investment Company Act, and the Final Prospectusrules and regulations thereunder;
(vii) The issuance and sale of the Securities by the Company to BAS hereunder, there are no legal the entry into and compliance by the Company with all provisions of this Agreement, and the consummation of the transactions herein contemplated will not conflict with or governmental proceedings pending result in a breach or violation of any of the terms or provisions of, or constitute a default under, any BCBS License, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, or which affects the Scheduled Subsidiaries is validity, performance or consummation of the subject whichtransactions contemplated by this Agreement nor will such action result in any violation of the provisions of (x) the Articles of Incorporation or the By-Laws or similar organizational documents, if determined adversely to as amended, of the Company or any of its subsidiaries or (y) to such counsel’s knowledge, any statute or any order, rule or regulation of any court or insurance regulatory agency or other governmental agency or body having jurisdiction over the Scheduled SubsidiariesCompany or any of its subsidiaries or any of their properties, would in each case the effect of which (other than a violation of the Articles of Incorporation or the By-Laws of the Company), individually or in the aggregate aggregate, would be either to adversely affect the validity or performance of this Agreement or to have a material adverse effect on Material Adverse Effect;
(viii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the current or future consolidated financial position, stockholders’ equity or results of operations consummation of the Company transactions contemplated by this Agreement in connection with the issuance or sale of the Securities by the Company, except such as have been obtained and its subsidiaries taken made under the Act and the Trust Indenture Act and such as a whole; and, to the best of may be required under state securities laws;
(ix) To such counsel’s knowledge knowledge, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued, and other than as no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(x) The statements set forth in the Disclosure Package Company’s Annual Report on Form 10-K for the year ended December 31, 2003 and the Final ProspectusCompany’s Quarterly Report on Form 10-Q for the quarter ended June 30, no such 2004, as applicable, under the captions “Legal Proceedings—Litigation” and “Legal Proceedings—Other Contingencies”, insofar as they purport to describe the provisions of the laws, documents and proceedings referred to therein, are threatened or contemplated by governmental authorities or threatened by othersaccurate and complete in all material respects;
(vixi) Neither the Company nor any of the Scheduled Subsidiaries its subsidiaries is (A) in violation of its Certificate articles of Incorporation incorporation or Byby-laws or similar organizational document or (B) in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any BCBS License, indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or bound, except, in the aggregate case of clause (B), where such default could not reasonably be expected to have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations Material Adverse Effect;
(xii) Each of the Company and its subsidiaries taken as a whole;
(vii) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions ofMaterial Subsidiaries has good title to, or constitute a default undervalid leasehold interests in, any indentureall its real and personal property material to its business, mortgage, deed of trust, loan agreement or other agreement or instrument known except as such defects in title that could not reasonably be expected to such counsel to which the Company or any of the Scheduled Subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses (1) and (3) above that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a wholeMaterial Adverse Effect; and
(viiixiii) The documents incorporated by reference in the Disclosure Package Registration Statement and the Final Prospectus or and any further amendment or supplement thereto, amendments and supplements thereto made by the Company prior to the Closing Date Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they were filed with the Commission complied ) comply as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations thereunder; although he does not assume any responsibility for the accuracy and completeness of the Commission thereunder; and statements contained in the Registration Statement or the Prospectus, except for those referred to in the opinion in subsection (x) of this Section 7(d), such counsel shall also state that he has no reason to believe that that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such documents, when they were so filed, counsel need express no belief) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading, or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion) contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and he does not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the United States and the State of Indiana.
Appears in 2 contracts
Samples: Underwriting Agreement (Anthem Inc), Underwriting Agreement (Anthem Inc)
Xxxxx X. XxxxxxxxXxxxx, Executive Vice President Esq., Secretary and General Counsel for the Company, shall have furnished to the Representatives you his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has such been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New York, with power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectus, Company has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except qualification or is subject to the extent that no material liability or disability by reason of the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; , provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (Each subsidiary of the “Scheduled Subsidiaries”) have each Company has been duly incorporated or organized and each is validly existing as an entity, and where such term applies, a corporation in good standing under the laws of its jurisdiction of incorporation or organizationincorporation; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable assessable, and (except for directors’ ' qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectusshares) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; its subsidiaries, provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(v) To the best of such counsel’s 's knowledge, the Company and its subsidiaries have good and marketable title in fee simple to all real property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries (in giving the opinion in this clause, such counsel may state that no examination of record titles for the purpose of such opinion has been made, and that he is relying upon a general review of the titles of the Company and its subsidiaries, upon opinions of local counsel and abstracts, reports and policies of title companies rendered or issued at or subsequent to the time of acquisition of such property by the Company or its subsidiaries, upon opinions of counsel to the lessors of such property and, in respect of matters of fact, upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions, abstracts, reports, policies and certificates);
(vi) To the best of such counsel's knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiariesits subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ shareholders' equity or results of operations of the Company and its subsidiaries taken as a wholesubsidiaries; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vivii) Neither This Agreement has been duly authorized, executed and delivered by the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligationCompany;
(viii) The Securities have been duly authorized, covenant or condition contained in any indentureexecuted, mortgageauthenticated, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations issued and delivered and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture; and its subsidiaries taken as a wholethe Securities and the Indenture conform to the descriptions thereof in the Prospectus;
(viiix) The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Indenture has been duly qualified under the Trust Indenture Act;
(x) To the best of such counsel's knowledge, the issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries its subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries its subsidiaries is subject, (2) nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties properties;
(xi) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters;
(xii) Neither the Company nor any of its subsidiaries is in violation of its Certificate of Incorporation or By-laws, or to the best of such counsel's knowledge, in default in the case performance or observance of clauses any material obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound;
(1xiii) and (3) above that would not individually or The statements set forth in the aggregate have Prospectus under the caption "Description of Debt Securities", insofar as they purport to constitute a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations summary of the Company terms of the Securities, and its subsidiaries taken under the caption "Underwriting", insofar as a whole; andthey purport to describe the provisions of the laws and documents referred to therein, are accurate, complete and fair;
(viiixiv) The Company is not an "investment company" or an entity "controlled" by an "investment company", as such terms are defined in the Investment Company Act;
(xv) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, thereto made by the Company prior to the Closing Date Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel he has no reason to believe that any of such documents, when they such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; and
(xvi) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although he does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, except for those referred to in the opinion in subsection (xiii) of this Section 7(c), he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in order the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.; and he does not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required;
Appears in 2 contracts
Samples: Underwriting Agreement (Financial Security Assurance Holdings LTD/Ny/), Underwriting Agreement (Financial Security Assurance Holdings LTD/Ny/)
Xxxxx X. XxxxxxxxXxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives his you her written opinion, subject to the limitations and qualifications set forth in opinion (a draft of such opinionopinion is attached as Annex II(a) hereto), dated the Closing Datesuch Time of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has such been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectus, Company has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that the no material liability or disability by reason of failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; , provided that such counsel shall state that he she believes that both you and he she are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been Each Material Subsidiary is duly incorporated or organized and each is validly existing as an entity, and where such term applies, a corporation in good standing under the laws of its jurisdiction of incorporation or organizationincorporation; and all of the issued shares of capital stock of each such Scheduled Material Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable assessable, and (except for directors’ ' qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectusshares) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; Essex, provided that such counsel shall state that he believes they believe that both you and he they are justified in relying upon such opinions and certificates);
(vvi) To the best of such counsel’s 's knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject which have a reasonable possibility of success and which, if determined adversely to the Company or any of the Scheduled Subsidiariesits subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity ' equity, cash flows or results of operations of the Company and its subsidiaries taken as a wholesubsidiaries; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vivii) Neither This Agreement and the Company nor any of International Underwriting Agreement have been duly authorized, executed and delivered by the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a wholeCompany;
(viiviii) The issue and sale of the Securities and the compliance by the Company with all of the provisions of this Agreement and the Securities, the Indenture and this International Underwriting Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries its subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries its subsidiaries is subject, (2) nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties; and
(ix) Neither the Company nor any of its subsidiaries is (A) in violation of its Certificate of Incorporation or By-laws or (B) in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties except may be bound except, in the case of clauses this clause (1) and (3) above B), for such defaults that would not not, individually or in the aggregate aggregate, have a material adverse effect on Material Adverse Effect. Such counsel shall also state that the current or future consolidated financial positionRegistration Statement and any amendment made thereto prior to such Time of Delivery, stockholders’ equity or results of operations of at the Company and its subsidiaries taken as a whole; and
(viii) The documents incorporated by reference in the Disclosure Package time it became effective, and the Final Prospectus or and any further amendment or supplement theretomade thereto prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by the Company prior to the Closing Date such counsel (other than except the financial statements and related schedules other information of an accounting or financial nature included therein, as to which such counsel need will express no opinionview), when they were filed with the Commission complied as appeared on their face to form be appropriately responsive in all material respects with to the requirements of the Act or the Exchange Act, as applicable, and the applicable rules and regulations thereunder; although such counsel will not assume responsibility for the accuracy or completeness of the Commission thereunderstatements made in the Registration Statement and Prospectus, except and provided in subsection (ii) of this Section 7(c) and except insofar as such statements relate to such counsel; and that the work of such counsel has no in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason to believe that the Registration Statement or any amendment made thereto prior to such Time of Delivery, at the time the Registration Statement or such documents, when they were so filedamendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement made thereto prior to such Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (in each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required.
Appears in 2 contracts
Samples: Underwriting Agreement (Essex International Inc /), Underwriting Agreement (Goldman Sachs Group Lp)
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives you his written opinion, subject to opinion on behalf of the limitations and qualifications set forth in such opinionCompany, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectusclosing date, has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus, and all of the issued shares of capital stock of the Company (including the Shares) have been duly and validly authorized and issued and are fully paid and non-assessable and the Shares conform to the description of the Shares in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that no material liability or disability by reason of the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; , provided that such counsel shall state that he believes they believe that both you and he they are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries Each subsidiary of the Company listed on Schedule VI IV hereto (the each “Scheduled Subsidiariessubsidiary”) have each has been duly incorporated or organized and each is validly existing as an entity, and where such term applies, a corporation in good standing under the laws of its jurisdiction of incorporation or organizationincorporation; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable assessable, and (except for directors’ qualifying shares and as otherwise included set forth in the Disclosure Package and the Final Pricing Prospectus) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; its subsidiaries, provided that such counsel shall state that he believes they believe that both you and he they are justified in relying upon such opinions and certificates);
(v) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiariesits subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a wholesubsidiaries; and, and to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectusknowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(vii) The issue and sale of the Securities Shares and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries its subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries its subsidiaries is subject, (2) nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriter;
(viii) Neither the Company nor any of its subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the case performance or observance of clauses (1) and (3) above that any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except for such defaults which would not individually or in the aggregate have a material adverse effect affect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and;
(viiiix) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, made by the Company prior to the Closing Date such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel has they have no reason to believe that any of such documents, when they became effective or were so filed, contained as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, therein not misleading; and
(x) The Company does not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the light of Registration Statement, the circumstances under Basic Prospectus or the Prospectus which they were made, are not misleadingfiled or incorporated by reference or described as required.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives his you her written opinion, subject to the limitations and qualifications set forth in opinion (a draft of such opinionopinion is attached as Annex II(a) hereto), dated the Closing Datesuch Time of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has such been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectus, Company has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that the no material liability or disability by reason of failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; , provided that such counsel shall state that he she believes that both you and he she are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been Each Material Subsidiary is duly incorporated or organized and each is validly existing as an entity, and where such term applies, a corporation in good standing under the laws of its jurisdiction of incorporation or organizationincorporation; and all of the issued shares of capital stock of each such Scheduled Material Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable assessable, and (except for directors’ ' qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectusshares) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; Essex, provided that such counsel shall state that he believes they believe that both you and he they are justified in relying upon such opinions and certificates);
(vvi) To the best of such counsel’s 's knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject which have a reasonable possibility of success and which, if determined adversely to the Company or any of the Scheduled Subsidiariesits subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity ' equity, cash flows or results of operations of the Company and its subsidiaries taken as a wholesubsidiaries; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vivii) Neither This Agreement and the Company nor any of International Underwriting Agreement have been duly authorized, executed and delivered by the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a wholeCompany;
(viiviii) The issue and sale of the Securities Shares being delivered at such Time of Delivery to be sold by the Company and the compliance by the Company with all of the provisions of this Agreement and the Securities, the Indenture and this International Underwriting Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries its subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries its subsidiaries is subject, (2) nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties; and
(ix) Neither the Company nor any of its subsidiaries is (A) in violation of its Certificate of Incorporation or By-laws or (B) in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties except may be bound except, in the case of clauses this clause (1) and (3) above B), for such defaults that would not not, individually or in the aggregate aggregate, have a material adverse effect on Material Adverse Effect. Such counsel shall also state that the current or future consolidated financial positionRegistration Statement and any amendment made thereto prior to such Time of Delivery, stockholders’ equity or results of operations of at the Company and its subsidiaries taken as a whole; and
(viii) The documents incorporated by reference in the Disclosure Package time it became effective, and the Final Prospectus or and any further amendment or supplement theretomade thereto prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by the Company prior to the Closing Date such counsel (other than except the financial statements and related schedules other information of an accounting or financial nature included therein, as to which such counsel need will express no opinionview), when they were filed with the Commission complied as appeared on their face to form be appropriately responsive in all material respects with to the requirements of the Act or the Exchange Act, as applicable, and the applicable rules and regulations thereunder; although such counsel will not assume responsibility for the accuracy or completeness of the Commission thereunderstatements made in the Registration Statement and Prospectus, except and provided in subsection (ii) of this Section 8(c) and except insofar as such statements relate to such counsel; and that the work of such counsel has no in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason to believe that the Registration Statement or any amendment made thereto prior to such Time of Delivery, at the time the Registration Statement or such documents, when they were so filedamendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement made thereto prior to such Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (in each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxx, Executive Vice President and General Counsel for the Company, Esq. shall have furnished to the Representatives his written opinion, subject as special counsel to the limitations Company, addressed to the Underwriters and qualifications set forth in such opinion, dated the Closing Delivery Date, in form and substance reasonably satisfactory to youthe Representatives, to the effect that:
(i) The Company has and each of its Significant Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction specified in such opinion, and have all power and authority (corporate and other) necessary to own its or hold their respective properties and conduct its business as described the businesses in the Disclosure Package and the Final Prospectuswhich they are engaged;
(ii) The Company, as of the date specified in the Final Prospectus, Company has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company (including the shares of Stock) have been duly and validly authorized and issued, are fully paid and non- assessable (subject to Section 630 of the BCL) and conform to the description thereof contained in the Prospectus; and all of the issued shares of capital stock of each Significant Subsidiary of the Company have been duly and validly authorized and issued and are fully paid, non-assessable (except as otherwise provided by applicable law) and (except for directors’ ' qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectusshares) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates)claims;
(viii) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of the Stock pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel;
(iv) To the best of such counsel’s 's knowledge and other than as set forth referred to under the caption "Business--Environmental Matters" in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property or asset of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiariesits subsidiaries, would individually or in the aggregate are reasonably likely to have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or ' equity, results of operations operations, business or prospects of the Company and its subsidiaries taken as a wholesubsidiaries; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(v) The Primary Registration Statement was declared effective under the Securities Act as of the date and time specified in such opinion, the Rule 462(b) Registration Statement, if any, was filed with the Commission on the date specified therein, the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) of the Rules and Regulations specified in such opinion on the date specified therein and, to the knowledge of such counsel, no stop order suspending the effectiveness of either of the Registration Statements has been issued and no proceeding for that purpose is pending or threatened by the Commission;
(vi) Neither The Registration Statements, as of their respective Effective Dates, and the Prospectus, as of its date, and any further amendments or supplements thereto, as of their respective dates, made by the Company nor any prior to the Delivery Date (other than the financial statements and other financial data contained therein, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default Securities Act and the Rules and Regulations; and the documents incorporated by reference in the performance or observance of any obligationProspectus (other than the financial statements and related schedules and other financial data contained therein, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument as to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or counsel need express no opinion), when they were filed with the Commission, complied as to form in all material respects with the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations requirements of the Company Exchange Act and its subsidiaries taken as a wholethe rules and regulations of the Commission thereunder;
(vii) To the best of such counsel's knowledge, there are no contracts or other documents which are required to be described in the Prospectus or filed as exhibits to the Registration Statements by the Securities Act or by the Rules and Regulations which have not been described or filed as exhibits to the Registration Statements or incorporated therein by reference as permitted by the Rules and Regulations;
(viii) This Agreement has been duly authorized, executed and delivered by the Company;
(ix) The issue and sale of the Securities shares of Stock by the Selling Shareholder and the compliance by the Company and the Selling Shareholder with all of the provisions of the Securities, the Indenture and this Agreement and the consummation by the Company and the Selling Shareholder of the transactions herein and therein on their respective parts contemplated hereby will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries its subsidiaries is bound or to which any of the property properties or assets of the Company or any of the Scheduled Subsidiaries its subsidiaries is subject, (2) nor will such actions result in any violation of the provisions of the Certificate of Incorporation charter or Byby-laws of the Company or (3) result in any violation of the provisions of its subsidiaries or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties or assets; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters (in the case of clauses (1) and (3) above that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and
(viii) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, made by the Company prior to the Closing Date (other than the financial statements and related schedules thereinsuch state securities laws, as to which such counsel need express no opinion), when they were filed with no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the Commission complied as to form in all material respects with execution, delivery and performance of this Agreement by the requirements Company and the consummation of the transactions on the part of the Company contemplated hereby; and
(x) To the best of such counsel's knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Exchange Company to include such securities in the securities registered pursuant to the Registration Statements or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act. In rendering such opinion, as applicable, such counsel may state that his opinion is limited to matters governed by the Federal laws of the United States of America and the rules and regulations laws of the Commission thereunder; State of New York. Such counsel shall also have furnished to the Representatives a written statement, addressed to the Underwriters and dated the Delivery Date, in form and substance satisfactory to the Representatives, to the effect that (x) such counsel has acted as counsel to the Company on a regular basis with respect to corporate and securities law matters (although the Company is also represented by its General Counsel and, with respect to certain other matters, by other outside counsel) and has acted as counsel to the Company in connection with the preparation of the Registration Statements, and (y) based on the foregoing, no reason facts have come to the attention of such counsel which lead him to believe that any (I) the Registration Statements (other than the financial statements and other financial data contained therein, as to which such counsel need make no such written statement), as of such documents, when they were so filedtheir respective Effective Dates, contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (other than the financial statements and other financial data contained therein, as to which such counsel need make no such written statement) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (II) any document incorporated by reference in the Prospectus or any further amendment or supplement to any such incorporated document made by the Company prior to the Delivery Date (other than the financial statements and other financial data contained therein, as to which such counsel need make no such written statement), when they became effective or were filed with the Commission, as the case may be, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The foregoing opinion and statement may be qualified by a statement to the effect that, except as stated in paragraph (ii) above, such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statements or the Prospectus.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxx, Executive Vice Vice-President and General Counsel for Chief Legal and Administrative Officer of the Company, shall have furnished to the Representatives you his written opinion, subject to the limitations and qualifications set forth in such opinionopinion (a draft of which is attached as Annex 7(d) hereto), dated the Closing DateTime of Delivery, in form and substance reasonably satisfactory to you, to the effect that:
(i) The Company has such been duly incorporated and is validly existing as a corporation under the laws of the State of Indiana, with the corporate power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, Anthem Insurance has been duly incorporated and is validly existing as a stock insurance company under the laws of the date specified State of Indiana, with the corporate power and authority to own its properties and conduct its business as described in the Final Prospectus, has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus;
(iii) The Company has been duly qualified an authorized capitalization as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that the failure to be so qualified in any such jurisdiction would not individually or described in the aggregate have a material adverse effect on Prospectus, and all of the consolidated financial position, stockholders’ equity or results issued shares of operations capital stock of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel Anthem Insurance have been duly authorized and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you validly issued and he are justified in relying upon such opinions fully paid and certificates)nonassessable;
(iv) Those subsidiaries listed on Schedule VI hereto (Each Material Subsidiary of the “Scheduled Subsidiaries”) have each Company and Anthem Insurance has been duly incorporated or organized and each is validly existing as an entitya corporation, partnership or limited liability company, as applicable, and where such term applies, is in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock or other ownership interests of each such Scheduled Material Subsidiary held by the Company have been duly authorized and validly authorized and issued, are fully paid and non-assessable nonassessable, and (except as described in the Prospectus and except for directors’ ' qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectusshares) are owned directly or indirectly by the Company, to such counsel’s knowledgeCompany or Anthem Insurance, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of to matters of fact facts upon certificates of officers of the Company Company, Anthem Insurance or such Scheduled Subsidiariestheir respective subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(v) To Each of the best Company, Anthem Insurance and each of their respective Material Subsidiaries has been duly qualified as a foreign corporation, partnership or limited liability company, as applicable, for the transaction of business and, to the extent such concept is applicable, is in good standing under the laws of each other jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified and in good standing in any such jurisdiction;
(vi) Each of Anthem Insurance and each Insurance or Healthcare Subsidiary is duly organized and licensed as an insurance, healthcare, HMO or health care management company or holding company in respect thereof in its jurisdiction of incorporation, and is duly licensed or authorized as such in each other jurisdiction where it is required to be so licensed or authorized to conduct its business as described in the Prospectus, except where the failure to be so licensed or authorized could not reasonably be expected to have a Material Adverse Effect; except as otherwise described in the Prospectus, each of Anthem Insurance and each Insurance or Healthcare Subsidiary has all other Approvals of and from all insurance or healthcare related regulatory authorities to conduct its business, except where the failure to have such Approvals could not reasonably be expected to have a Material Adverse Effect; to such counsel’s 's knowledge, there is no pending or threatened action, suit, proceeding or investigation that could reasonably be expected to lead to the revocation, termination or suspension of any such Approval, the revocation, termination or suspension of which would have, individually or in the aggregate, a Material Adverse Effect; and, to such counsel's knowledge, no insurance or healthcare related regulatory agency or body has issued any order or decree impairing, restricting or prohibiting the payment of dividends by any Insurance or Healthcare Subsidiary to its parent, except as described in the Prospectus;
(vii) Each of the Company, Anthem Insurance and each of their respective Material Subsidiaries has all necessary Approvals from, and has made all Filings with, all insurance regulatory authorities, all Federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, which are necessary to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; to such counsel's knowledge, all such Approvals and Filings are in full force and effect and neither the Company, Anthem Insurance nor any of their respective Material Subsidiaries has received any notice of any event, inquiry, investigation or proceeding that would reasonably be expected to result in the suspension, revocation or limitation of any such Approval or otherwise impose any material limitation on the conduct of the business of the Company, Anthem Insurance or any such subsidiary, except as described in the Prospectus;
(viii) To such counsel's knowledge, there is no legal or governmental proceeding pending or, to such counsel's knowledge and as disclosed to you, currently being threatened challenging the offering of the Securities by the Underwriters;
(ix) To such counsel's knowledge, other than as set forth described or contemplated in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company Company, Anthem Insurance or any of the Scheduled Subsidiaries their respective subsidiaries is a party or of which any property of the Company Company, Anthem Insurance or any of the Scheduled Subsidiaries their respective subsidiaries is the subject whichwhich could reasonably be expected to have, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate have aggregate, a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a wholeMaterial Adverse Effect; and, to the best of such counsel’s 's knowledge and other than as set forth described or contemplated in the Disclosure Package and the Final Prospectus, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vix) This Agreement has been duly authorized, executed and delivered by the Company;
(xi) The Securities have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture; and the Securities and the Indenture conform in all material respects to the descriptions thereof in the Prospectus;
(xii) The Indenture has been duly authorized, executed and delivered and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Indenture has been duly qualified under the Trust Indenture Act;
(xiii) None of the Company, Anthem Insurance or any of their respective subsidiaries is or, after giving effect to the offering and sale of the Securities and the application of the proceeds of the sale of Securities as described in the Prospectus, will be an "investment company", as such term is defined in the Investment Company Act, and the rules and regulations thereunder;
(xiv) The issuance and sale of the Securities by the Company to the Underwriters hereunder, the entry into and compliance by the Company with all provisions of this Agreement, and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any BCBS License, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company, Anthem Insurance or any of their respective subsidiaries is a party or by which the Company, Anthem Insurance or any of their respective subsidiaries is bound or to which any of the property or assets of the Company, Anthem Insurance or any of their respective subsidiaries is subject, or which affects the validity, performance or consummation of the transactions contemplated by this Agreement nor will such action result in any violation of the provisions of (x) the Articles of Incorporation or the By-Laws or similar organizational documents, as amended, of the Company, Anthem Insurance or any of their respective subsidiaries or (y) to such counsel's knowledge, any statute or any order, rule or regulation of any court or insurance regulatory agency or other governmental agency or body having jurisdiction over the Company, Anthem Insurance or any of their respective subsidiaries or any of their properties, in each case the effect of which (other than a violation of the Articles of Incorporation or the By-Laws or similar organizational documents of the Company or Anthem Insurance), individually or in the aggregate, would be either to adversely affect the validity or performance of this Agreement or to have a Material Adverse Effect;
(xv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Securities by the Company, except such as have been obtained and made under the Act and the Trust Indenture Act and such as may be required under state securities laws;
(xvi) To such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued, and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(xvii) The statements set forth in the Prospectus under the caption "Description of the Notes", insofar as they purport to constitute a summary of the terms of the Securities, and under the captions "Risk Factors—Our and Trigon's investment portfolios are subject to varying economic and market conditions, as well as regulation. As a Medicare fiscal intermediary, we are subject to complex regulations. If we fail to comply with these regulations, we may be exposed to criminal sanctions and significant civil penalties. We are using the Blue Cross and Blue Shield names and marks as identifiers for our products and services under licenses from the Blue Cross Blue Shield Association. The termination of these license agreements could adversely affect our business, financial condition and results of operations."; "Business of Anthem—The Blue Cross Blue Shield License", "Business of Anthem—Regulation", "Business of Anthem—Litigation", "Business of Anthem—Other Contingencies" and "Underwriting", insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate and complete in all material respects;
(xviii) Neither the Company Company, Anthem Insurance nor any of the Scheduled Subsidiaries their respective subsidiaries is (A) in violation of its Certificate articles of Incorporation incorporation or Byby-laws or similar organizational document or (B) in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any BCBS License, indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial positionbound, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(vii) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securitiesexcept, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses clause (1B), where such default could not reasonably be expected to have a Material Adverse Effect;
(xix) The Company, Anthem Insurance and (3) above that would not individually or their respective Material Subsidiaries have good and marketable title in fee simple to all material real property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the aggregate have Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property, and any material real property and buildings held under lease by the Company, Anthem Insurance and their respective Material Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings (in giving the opinion in this clause, such counsel may state that no examination of record titles for the purpose of such opinion has been made, and that they are relying upon a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations general review of the Company titles of the Company, Anthem Insurance and its subsidiaries taken as a wholetheir respective Material Subsidiaries, upon opinions of local counsel and abstracts, reports and policies of title companies rendered or issued at or subsequent to the time of acquisition of such property by the Company, Anthem Insurance any their respective Material Subsidiaries, upon opinions of counsel to the lessors of such property and, in respect to matters of fact, upon certificates of officers of the Company, Anthem Insurance or their respective subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions, abstracts, reports, policies and certificates); and
(viiixx) The documents incorporated by reference in the Disclosure Package Registration Statement and the Final Prospectus or and any further amendment or supplement thereto, amendments and supplements thereto made by the Company prior to the Closing Date Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they were filed with the Commission complied ) comply as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations thereunder; although he does not assume any responsibility for the accuracy and completeness of the Commission thereunder; and statements contained in the Registration Statement or the Prospectus, except for those referred to in the opinion in subsection (xvii) of this Section 7(d), such counsel shall also state that he has no reason to believe that the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such documents, when they were so filed, counsel need express no belief) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading, or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion) contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and he does not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the United States and the State of Indiana.
Appears in 1 contract
Samples: Underwriting Agreement (Anthem Inc)
Xxxxx X. XxxxxxxxXxxxxxxxx, Executive Vice President and General Counsel for of the Company, shall have furnished to the Representatives you his written opinion, subject to the limitations and qualifications set forth in dated such opinion, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectus, has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction jurisdiction, outside of Bermuda, in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that where the failure to be so qualified or in any such jurisdiction good standing would not individually or result in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole Material Adverse Effect (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; , provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(ivii) Those subsidiaries listed on Schedule VI hereto (Each subsidiary of the “Scheduled Subsidiaries”) have each Company has been duly incorporated or organized and each is validly existing as an entity, and where such term applies, a corporation in good standing under the laws of its jurisdiction of incorporation or organization; incorporation, except where any such failure would not result in a Material Adverse Effect, and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable assessable, and (except for directors’ ' qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectusshares) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims claims, except those that would not result in a Material Adverse Effect (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; its subsidiaries, provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(viii) To the best of such counsel’s 's knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject which, if determined adversely which might reasonably be expected to the Company or any of the Scheduled Subsidiaries, would individually or result in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a wholeMaterial Adverse Effect; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersthreatened;
(vi) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(viiiv) The issue and sale of the Securities Shares being delivered at such Time of Delivery and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries its subsidiaries is legally bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries its subsidiaries is subject, (2) except any such breach, violation or default as would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the Certificate of Incorporation or ByBye-laws or Memorandum of Association of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body Governmental Agency having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties except such violations of statues, orders, rules or regulations as would not have a Material Adverse Effect;
(v) Neither the Company nor any of its subsidiaries is in violation of its Bye-laws or Memorandum of Association or in default in the case performance or observance of clauses any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound (1) and (3) above except for such defaults that would not individually or in the aggregate have a material adverse effect on Material Adverse Effect). In giving such opinion, such counsel may state that with respect to all matters of United States federal and New York law he has relied upon the current or future consolidated financial position, stockholders’ equity or results opinions of operations of United States counsel for the Company delivered pursuant to paragraph (c) of this Section 7 and its subsidiaries taken as a whole; and
(viii) The documents incorporated by reference in that with respect to all matters of Bermuda law he has relied upon the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, made by opinions of Bermuda counsel for the Company prior delivered pursuant to the Closing Date paragraph (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission complied as to form in all material respects with the requirements d) of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.this Section 7;
Appears in 1 contract
Samples: Underwriting Agreement (Tycom LTD)
Xxxxx X. XxxxxxxxXxxxxxx, Executive Vice President and Esq., General Counsel for of the Company, shall have furnished to the Representatives you his written opinion, subject to opinion (in the limitations and qualifications form set forth in such opinionAnnex II(c) to the Pricing Agreement), dated the Closing Date, in form and substance satisfactory to youTime of Delivery, to the effect that:
(i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as Each of the date specified in Company and each subsidiary of the Final ProspectusCompany listed on Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the period ended December 31, has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus;
(iii) The Company 2009 has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that the no material liability or disability by reason of failure to be so qualified in any such jurisdiction jurisdiction, except where the failure to be so qualified or in good standing as a foreign corporation would not not, individually or in the aggregate have aggregate, reasonably be expected to result in a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole Material Adverse Effect (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; , provided that such counsel shall state that he believes they believe that both you and he they are justified in relying upon such opinions and certificates);
(ivii) Those subsidiaries Each subsidiary of the Company listed on Schedule VI hereto (Exhibit 21.1 to the “Scheduled Subsidiaries”) have each Company’s Annual Report on Form 10-K for the period ended December 31, 2009 has been duly incorporated or organized and each is validly existing as an entity, and where such term applies, a corporate entity in good standing under the laws of its jurisdiction of incorporation or organizationformation, as applicable, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and all of the issued shares of capital stock or other equity interests of each such Scheduled Subsidiary held by the Company subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable assessable, and (except for directors’ qualifying shares and shares or interests in the Paris subsidiary that are owned by Lazard Group French managing directors and except as otherwise included set forth or described in the Disclosure Package and the Final Prospectus) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or claims as described in the Prospectus or that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; its subsidiaries, provided that such counsel shall state that he believes that they believe both you and he they are justified in relying upon such opinions and certificates);
(viii) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiariesits subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersMaterial Adverse Effect;
(vi) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(viiiv) The issue and sale of the Securities and the compliance by the Company with all of the provisions of this Agreement and the Securities, the Indenture and this Pricing Agreement and the consummation of the transactions contemplated herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known listed on Exhibit A to such counsel opinion, except for such breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) To the best of such counsel’s knowledge, the Company and each of its subsidiaries have all licenses and concessions of and from all Governmental Agencies that are necessary to own or lease their properties and conduct their businesses as described in the Prospectus, and the Company and each of its subsidiaries have all franchises, permits, authorizations, approvals and orders and other licenses and concessions of and from all Governmental Agencies that are necessary to own or lease their other properties and conduct their businesses as described in the Prospectus, except for such licenses, concessions, franchises, permits, authorizations, approvals and orders the failure to obtain which will not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect;
(vi) To best of such counsel’s knowledge, none of the Company’s subsidiaries is in violation of its constitutive documents and neither the Company nor any of its subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any agreement or instrument listed on Exhibit A to such opinion to which the Company or any of the Scheduled Subsidiaries it is a party or by which the Company it or any of its properties may be bound except for such violations or defaults which would not, individually or in the Scheduled Subsidiaries is bound aggregate, reasonably be expected to have a Material Adverse Effect; and
(vii) The statements set forth or incorporated in the Prospectus under the caption “Certain Relationships and Related Transactions”, insofar as they purport to which any of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result in any violation of describe the provisions of the Certificate documents referred to therein, are accurate and complete summaries of Incorporation such provisions in all material respects. Although such counsel has not verified, is not passing upon, and does not assume any responsibility for the accuracy, completeness or By-laws fairness of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries or any of their properties except statements contained in the case of clauses (1) and (3) above that would not individually Registration Statement, the Pricing Disclosure Package or the Prospectus, except for those referred to in the aggregate opinion in subsection (vii) of this Section 10(f), no facts have a material adverse effect on come to such counsel’s attention that lead him to believe and such counsel has no other reason to believe, (i) that, as of its effective date, the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and
(viii) The documents incorporated by reference in the Disclosure Package and the Final Prospectus Registration Statement or any further amendment or supplement thereto, thereto made by the Company prior to the Closing Date Time of Delivery (other than the financial statements and related schedules and notes or other financial or statistical data included therein, as to which such counsel need express no opinion)) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, when they were filed with (ii) that the Commission complied Pricing Disclosure Package, as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel has no reason to believe that any of such documents, when they were so filedApplicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading or (iii) that, as of its date, and as of the Time of Delivery, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and notes or other financial or statistical data included therein, as to which such counsel need express no opinion) contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.. In rendering his opinion, such counsel may state that he expresses no opinion other than as to the law of the State of New York and the federal securities laws of the United States;
Appears in 1 contract
Samples: Underwriting Agreement (Lazard LTD)
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing Date, in form and substance satisfactory to you, to the effect that:
(i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectus, has an authorized capitalization as set forth under the caption “Capitalization” in the Final ProspectusProspectus and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that no material liability or disability by reason of the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectus) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(v) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(vii) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses (1) and (3) above that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and;
(viii) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, made by the Company prior to the Closing Date (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel he has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(ix) The Company is not, and after giving effect to the offering and sale of the Securities to be issued and sold by the Company under this Agreement and the Indenture and the application of the net proceeds from such sale as described in the Final Prospectus under the caption “Use of Proceeds”, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act.
Appears in 1 contract
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing Date, in form and substance satisfactory to you, to the effect that:
(i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectus, has an authorized capitalization as set forth under the caption “Capitalization” in the Final ProspectusProspectus and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that no material liability or disability by reason of the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares and as otherwise included in the Disclosure Package and the Final ProspectusPackage) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(v) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final ProspectusPackage, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final ProspectusPackage, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(vii) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses (1) and (3) above that would not not, individually or in the aggregate aggregate, have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and;
(viii) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, thereto made by the Company prior to the Closing Date (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel he has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(ix) The Company is not and, after giving effect to the offering and sale of the Securities to be issued and sold by the Company under this Agreement and the Indenture and the application of the net proceeds from such sale as described in the Final Prospectus under the caption “Use of Proceeds”, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxx, Executive Vice President and General Counsel for Esq., general counsel of the Company, shall have furnished to the Representatives Underwriters his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, the Underwriters to the effect that:
(i) The Company has such full power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package Prospectus and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectus, has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus;
(iii) The Company has been is duly qualified as a foreign corporation for the transaction of to do business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties real property or conducts any in which the conduct of its business so as to require requires such qualification, qualification except to the extent that where the failure to be so qualified in any qualified, considering all such jurisdiction would not individually or cases in the aggregate have aggregate, does not involve a material adverse effect on risk to the consolidated business, properties, financial position, stockholders’ equity position or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectus) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(v) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken considered as a whole;
(viiii) The issue documents incorporated by reference in the Registration Statement, the Prospectus and sale the Preliminary Prospectus, when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; and such counsel believes that none of such documents, when such documents were so filed, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading, it being understood that such counsel need express no opinion as to the financial statements or other financial data included in any of the documents mentioned in this clause (ii);
(iii) The descriptions in the Registration Statement and Prospectus as amended or supplemented relating to the Designated Securities of statutes, legal and governmental proceedings, contracts and other documents are accurate and fairly present the information required to be shown; and such counsel does not know of any statutes or legal or governmental proceedings required to be described in the Registration Statement and Prospectus as amended or supplemented relating to the Designated Securities that are not described as required or of any contracts of a character required to be described in the Registration Statement or Prospectus as amended or supplemented relating to the Designated Securities (or required to be filed under the Exchange Act if upon such filing they would be incorporated by reference therein) or to be filed as exhibits to the Registration Statement that are not described and filed as required;
(iv) The performance of this Agreement and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default under, any indenturestatute, mortgage, deed of trust, loan agreement or other any agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries them is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries them is subject, (2) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties except properties;
(v) There is no action, suit, proceeding or rule making before or by any court or governmental agency or body, domestic or foreign, now pending or, to the knowledge of such counsel, threatened, against or affecting the Company or any of its subsidiaries which is required to be disclosed in the case of clauses Registration Statement or the Prospectus as amended or supplemented relating to the Designated Securities (1) and (3) above that would not individually other than as disclosed therein), or which may reasonably be expected to result in any material adverse change in the aggregate have a material adverse effect on the current earnings, business affairs or future consolidated financial position, stockholders’ equity or results of operations business prospects of the Company or may reasonably be expected to materially and its subsidiaries taken as a wholeadversely affect the properties or assets thereof or might materially and adversely affect the consummation of this Agreement; and
and (viiivi) The documents incorporated by reference Company has an authorized capitalization as set forth in the Disclosure Package and Prospectus; all the Final Prospectus or any further amendment or supplement thereto, made by issued partnership interests of the Company prior to the Closing Date (other than the financial statements have been duly and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicablevalidly authorized and issued, and the rules are fully paid and regulations of the Commission thereunder; and such counsel has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingnon- assessable.
Appears in 1 contract
Samples: Underwriting Agreement (Freeport McMoran Resource Partners Limited Partnership)
Xxxxx X. XxxxxxxxXxxxx, Executive Vice President and General Counsel for the Company, Esq. shall have furnished to the Representatives his written opinion, subject as special counsel to the limitations Company, addressed to the Underwriters and qualifications set forth in dated such opinion, dated the Closing Delivery Date, in form and substance reasonably satisfactory to youthe Representatives, to the effect that:
(i) The Company has and each of its Significant Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction specified in such opinion, and have all power and authority (corporate and other) necessary to own its or hold their respective properties and conduct its business as described the businesses in the Disclosure Package and the Final Prospectuswhich they are engaged;
(ii) The CompanyIndenture has been duly authorized, as executed and delivered by the Company and, assuming due execution and delivery by the Trustee, constitutes a valid and binding agreement of the date specified Company enforceable against the Company in accordance with its terms, subject to the Final Prospectuseffects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing;
(iii) The Notes have been duly authorized, executed and delivered by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with this Agreement, will be duly and validly issued and outstanding and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing;
(iv) The Company has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable (subject to Section 630 of the BCL) and conform to the description thereof contained in the Prospectus; all of the shares of Common Stock issuable upon conversion of the Notes have been duly and validly authorized and reserved for issuance upon such conversion and, when issued and delivered in accordance with the terms of the Indenture, will be duly and validly issued, fully paid and non- assessable (subject to Section 630 of the BCL); and all of the issued shares of capital stock of each Significant Subsidiary of the Company have been duly and validly authorized and issued and are fully paid, non-assessable (except as otherwise provided by applicable law) and (except for directors’ ' qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectusshares) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates)claims;
(v) The Indenture and the Notes conform to the description thereof contained in the Prospectus;
(vi) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of the Common Stock issuable upon conversion of the Notes pursuant to the Company's charter or by- laws or any agreement or other instrument known to such counsel;
(vii) To the best of such counsel’s 's knowledge and other than as set forth referred to under the caption "Business-- Environmental Matters" in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property or asset of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiariesits subsidiaries, would individually or in the aggregate are reasonably likely to have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or ' equity, results of operations operations, business or prospects of the Company and its subsidiaries taken as a wholesubsidiaries; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(viviii) Neither The Primary Registration Statement was declared effective under the Company nor any Securities Act and the Indenture was qualified under the Trust Indenture Act as of the Scheduled Subsidiaries is date and time specified in violation of its Certificate of Incorporation or By-laws or in default in such opinion, the performance or observance of any obligationRule 462(b) Registration Statement, covenant or condition contained in any indentureif any, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in was filed with the aggregate have a material adverse effect Commission on the current or future consolidated financial positiondate specified therein, stockholders’ equity or results the Prospectus was filed with the Commission pursuant to the subparagraph of operations Rule 424(b) of the Company Rules and its subsidiaries taken as a wholeRegulations specified in such opinion on the date specified therein and, to the knowledge of such counsel, no stop order suspending the effectiveness of either of the Registration Statements has been issued and no proceeding for that purpose is pending or threatened by the Commission;
(viiix) The Registration Statements, as of their respective Effective Dates, and the Prospectus, as of its date, and any further amendments or supplements thereto, as of their respective dates, made by the Company prior to such Delivery Date (other than the financial statements and other financial data contained therein, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations; the documents incorporated by reference in the Prospectus and any further amendment or supplement to any such incorporated document made by the Company prior to such Delivery Date (other than the financial statements and related schedules and other financial data contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; and the Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the applicable rules and regulations thereunder;
(x) To the best of such counsel's knowledge, there are no contracts or other documents which are required to be described in the Prospectus or filed as exhibits to the Registration Statements by the Securities Act or by the Rules and Regulations which have not been described or filed as exhibits to the Registration Statements or incorporated therein by reference as permitted by the Rules and Regulations;
(xi) This Agreement has been duly authorized, executed and delivered by the Company;
(xii) The issue and sale of the Securities Notes being delivered on such Delivery Date by the Company and the compliance by the Company with all of the provisions of the Securities, this Agreement and the Indenture and this Agreement and the consummation of the transactions herein contemplated hereby and therein contemplated thereby and the issuance and delivery of the Common Stock issuable upon conversion of the Notes will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries its subsidiaries is bound or to which any of the property properties or assets of the Company or any of the Scheduled Subsidiaries its subsidiaries is subject, (2) nor will such actions result in any violation of the provisions of the Certificate of Incorporation charter or Byby-laws of the Company or (3) result in any violation of the provisions of its subsidiaries or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties or assets; and, except for the registration of the Notes and the Common Stock issuable upon conversion of the Notes under the Securities Act, such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and distribution of the Notes by the Underwriters (in the case of clauses (1) and (3) above that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and
(viii) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, made by the Company prior to the Closing Date (other than the financial statements and related schedules thereinsuch state securities laws, as to which such counsel need express no opinion), when they were filed with ) and the Commission complied as to form in all material respects with the requirements qualification of the Indenture under the Trust Indenture Act of 1939, as amended, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the Exchange Act, as applicable, Indenture by the Company and the rules and regulations consummation of the Commission thereundertransactions contemplated hereby and thereby and the issuance of the Common Stock issuable upon conversion of the Notes; and
(xiii) To the best of such counsel's knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statements or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act. In rendering such opinion, such counsel may state that his opinion is limited to matters governed by the Federal laws of the United States of America and the laws of the State of New York. Such counsel shall also have furnished to the Representatives a written statement, addressed to the Underwriters and dated such Delivery Date, in form and substance satisfactory to the Representatives, to the effect that (x) such counsel has acted as counsel to the Company on a regular basis with respect to corporate and securities law matters (although the Company is also represented by its General Counsel and, with respect to certain other matters, by other outside counsel) and has acted as counsel to the Company in connection with the preparation of the Registration Statements, and (y) based on the foregoing, no reason facts have come to the attention of such counsel which lead him to believe that any (I) the Registration Statements (other than the financial statements and other financial data contained therein, as to which such counsel need make no such written statement), as of such documents, when they were so filedtheir respective Effective Dates, contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (other than the financial statements and other financial data contained therein, as to which such counsel need make no such written statement) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (II) any document incorporated by reference in the Prospectus or any further amendment or supplement to any such incorporated document made by the Company prior to such Delivery Date (other than the financial statements and other financial data contained therein, as to which such counsel need make no such written statement), when they became effective or were filed with the Commission, as the case may be, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The foregoing opinion and statement may be qualified by a statement to the effect that, except as set forth in paragraphs (iv) and (v) above, such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statements or the Prospectus.
Appears in 1 contract
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives you his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final ProspectusOffering Circular;
(ii) The Company, as of the date specified in the Final ProspectusOffering Circular, has an authorized capitalization as set forth under the caption “Capitalization” in the Final ProspectusOffering Circular and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that no material liability or disability by reason of the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI I hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares and as otherwise included in the Disclosure Package and the Final ProspectusOffering Circular) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(v) The Company and the Scheduled Subsidiaries have good and marketable title in fee simple to all real property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Offering Circular or would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole and do not interfere with the use made and proposed to be made of such property by the Company and the Scheduled Subsidiaries; and any real property and buildings held under lease by the Company and the Scheduled Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Scheduled Subsidiaries (in giving the opinion in this clause, such counsel may state that no examination of record titles for the purpose of such opinion has been made, and that he may rely upon a general review of the titles of the Company and the Scheduled Subsidiaries, upon opinions of local counsel and abstracts, reports and policies of title companies rendered or issued at or subsequent to the time of acquisition of such property by the Company or the Scheduled Subsidiaries, upon opinions of counsel to the lessors of such property and, in respect of matters of fact, upon certificates of officers of the Company or the Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions, abstracts, reports, policies and certificates);
(vi) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final ProspectusOffering Circular, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final ProspectusOffering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vivii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture, except, such as may be required under the Act in connection with the shares of Stock issuable upon conversion of the Securities and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Purchaser;
(viii) The resolutions of the Board of Directors of the Company approving the issuance of the Securities have reserved the Conversion Shares for issuance;
(ix) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that which would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(viix) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses (1) and (3) above that which would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and;
(viiixi) The documents incorporated by reference in the Disclosure Package and the Final Prospectus Offering Circular or any further amendment or supplement thereto, made by the Company prior to the Closing Date such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel he has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(xii) No registration of the Securities under the Act, and no qualification of an indenture under the United States Trust Indenture Act of 1939 with respect thereto, is required for the offer, sale and initial resale of the Securities by the Purchaser in the manner contemplated by this Agreement; and
(xiii) The Company is not, and after giving effect to the offering and sale of the Securities to be issued and sold by the Company under this Agreement and the Indenture and the application of the net proceeds from such sale as described in the Offering Circular under the caption “Use of Proceeds”, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act.
Appears in 1 contract
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing Date, in form and substance satisfactory to you, to the effect that:
(i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectus, has an authorized capitalization as set forth under the caption “Capitalization” in the Final ProspectusProspectus and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that no material liability or disability by reason of the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectus) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(v) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that which would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(vii) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses (1) and (3) above that which would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and;
(viii) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, made by the Company prior to the Closing Date (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel he has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(ix) The Company is not, and after giving effect to the offering and sale of the Securities to be issued and sold by the Company under this Agreement and the Indenture and the application of the net proceeds from such sale as described in the Final Prospectus under the caption “Use of Proceeds”, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act.
Appears in 1 contract
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives you his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final ProspectusOffering Circular;
(ii) The Company, as of the date specified in the Final ProspectusOffering Circular, has an authorized capitalization as set forth under the caption “Capitalization” in the Final ProspectusOffering Circular and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that no material liability or disability by reason of the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI I hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares and as otherwise included in the Disclosure Package and the Final ProspectusOffering Circular) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(v) The Company and the Scheduled Subsidiaries have good and marketable title in fee simple to all real property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Offering Circular or would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole and do not interfere with the use made and proposed to be made of such property by the Company and the Scheduled Subsidiaries; and any real property and buildings held under lease by the Company and the Scheduled Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Scheduled Subsidiaries (in giving the opinion in this clause, such counsel may state that no examination of record titles for the purpose of such opinion has been made, and that he may rely upon a general review of the titles of the Company and the Scheduled Subsidiaries, upon opinions of local counsel and abstracts, reports and policies of title companies rendered or issued at or subsequent to the time of acquisition of such property by the Company or the Scheduled Subsidiaries, upon opinions of counsel to the lessors of such property and, in respect of matters of fact, upon certificates of officers of the Company or the Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions, abstracts, reports, policies and certificates);
(vi) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final ProspectusOffering Circular, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final ProspectusOffering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vivii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture, except, such as may be required under the Act in connection with the shares of Stock issuable upon conversion of the Securities and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Purchasers;
(viii) The resolutions of the Board of Directors of the Company approving the issuance of the Securities have reserved the shares of Stock issuable upon conversion of the Securities for issuance;
(ix) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that which would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(viix) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses (1) and (3) above that which would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and;
(viiixi) The documents incorporated by reference in the Disclosure Package and the Final Prospectus Offering Circular or any further amendment or supplement thereto, made by the Company prior to the Closing Date such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel he has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(xii) No registration of the Securities under the Act, and no qualification of an indenture under the United States Trust Indenture Act of 1939 with respect thereto, is required for the offer, sale and initial resale of the Securities by the Purchasers in the manner contemplated by this Agreement; and
(xiii) The Company is not, and after giving effect to the offering and sale of the Securities to be issued and sold by the Company under this Agreement and the Indenture and the application of the net proceeds from such sale as described in the Offering Circular under the caption “Use of Proceeds”, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives his you her written opinion, subject to the limitations and qualifications set forth in opinion (a draft of such opinionopinion is attached as Annex II(a) hereto), dated the Closing Datesuch Time of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has such been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectus, Company has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other similar rights and the Shares conform to the description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that the no material liability or disability by reason of failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; , provided that such counsel shall state that he she believes that both you and he she are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each Each Material Subsidiary has been duly incorporated or organized and each is validly existing as an entity, and where such term applies, a corporation in good standing under the laws of its jurisdiction of incorporation or organizationincorporation; and all of the issued shares of capital stock of each such Scheduled Material Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable assessable, and (except for directors’ ' qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectusshares) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; Essex, provided that such counsel shall state that he believes they believe that both you and he they are justified in relying upon such opinions and certificates);
(vvi) To the best of such counsel’s 's knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject which have a reasonable possibility of success and which, if determined adversely to the Company or any of the Scheduled Subsidiariesits subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity ' equity, cash flows or results of operations of the Company and its subsidiaries taken as a wholesubsidiaries; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vivii) Neither This Agreement and the Company nor any of International Underwriting Agreement have been duly authorized, executed and delivered by the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a wholeCompany;
(viiviii) The issue and sale of the Securities Shares being delivered at such Time of Delivery to be sold by the Company and the compliance by the Company with all of the provisions of this Agreement and the Securities, the Indenture and this International Underwriting Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries its subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries its subsidiaries is subject, (2) nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties; and
(ix) Neither the Company nor any of its subsidiaries is (A) in violation of its Certificate of Incorporation or By-laws or (B) in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties except may be bound except, in the case of clauses this clause (1) and (3) above B), for such defaults that would not not, individually or in the aggregate aggregate, have a material adverse effect on Material Adverse Effect. Such counsel shall also state that the current or future consolidated financial positionRegistration Statement and any amendment made thereto prior to such Time of Delivery, stockholders’ equity or results of operations of at the Company and its subsidiaries taken as a whole; and
(viii) The documents incorporated by reference in the Disclosure Package time it became effective, and the Final Prospectus or and any further amendment or supplement theretomade thereto prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by the Company prior to the Closing Date such counsel (other than except the financial statements and related schedules other information of an accounting or financial nature included therein, as to which such counsel need will express no opinionview), when they were filed with the Commission complied as appeared on their face to form be appropriately responsive in all material respects with to the requirements of the Act or the Exchange Act, as applicable, and the applicable rules and regulations thereunder; although such counsel will not assume responsibility for the accuracy or completeness of the Commission thereunderstatements made in the Registration Statement and Prospectus, except and provided in subsection (ii) of this Section 8(c) and except insofar as such statements relate to such counsel; and that the work of such counsel has no in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason to believe that the Registration Statement or any amendment made thereto prior to such Time of Delivery, at the time the Registration Statement or such documents, when they were so filedamendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement made thereto prior to such Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (in each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxxxx, Executive Vice President and Associate General Counsel for of the Company, shall have furnished to the Representatives his you such counsel's written opinion, subject to the limitations and qualifications set forth in dated such opinion, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has such been duly incorporated and is validly existing as a corporation in good standing under the laws of Delaware, with all requisite corporate power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectus, Company has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; and the Shares conform in all material respects to the description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that the no material liability or disability by reason of failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; , provided that such counsel shall state that he believes they believe that both you and he they are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (Each subsidiary of the “Scheduled Subsidiaries”) have each Company has been duly incorporated or organized and each is validly existing as an entity, and where such term applies, a corporation in good standing under the laws of its jurisdiction of incorporation or organizationincorporation; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable assessable, and (except for directors’ ' qualifying shares and except as otherwise included set forth in the Disclosure Package and the Final Prospectus) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; its subsidiaries, provided that such counsel shall state that he believes they believe that both you and he they are justified in relying upon such opinions and certificates);
(v) To the best of such counsel’s Such counsel has no knowledge and that, other than as set forth in the Disclosure Package and the Final Prospectus, there are no any legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiariesits subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries subsidiaries, taken as a whole; and, to the best of such counsel’s counsel has no knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, no that such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither This Agreement has been duly authorized, executed and delivered by the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a wholeCompany;
(vii) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries its subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries its subsidiaries is subject, (2) nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties except properties;
(viii) Neither the Company nor any of its subsidiaries is (a) in violation of its Certificate of Incorporation or By-laws or (b) in default in the case performance or observance of clauses (1) and (3) above any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, or lease or agreement or other instrument to which it is a party or by which it or any of its properties may be bound other than with respect to any obligation, agreement, covenant or condition that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries subsidiaries, taken as a whole; and;
(viiiix) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, thereto made by the Company prior to the Closing Date such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel and
(x) Although he does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, except for those referred to in the opinion in Section 7(e), he has no reason to believe that that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to such Time of Delivery (other than the financial statements and related financial data and schedules contained therein or omitted therefrom, as to which such documents, when they were so filed, counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery (other than the financial statements and related financial data and schedules contained therein or omitted therefrom, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in order the light of the circumstances under which they were made, not misleading or that, as of such Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery (other than the financial statements and related financial data and schedules contained therein or omitted therefrom, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.; and they do not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required;
Appears in 1 contract
Samples: Underwriting Agreement (Overseas Shipholding Group Inc)
Xxxxx X. XxxxxxxxXxxxxxxxxx, Executive Vice President and General Counsel for of the Company, Company (or such other person who shall be General Counsel of the Company at such Time of Delivery) shall have furnished to the Representatives his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing DateTime of Delivery for such Designated Securities, in form and substance satisfactory to youthe Representatives, to the effect that:
(i) The Company has such been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Illinois, with corporate power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package Prospectus as amended or supplemented, and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectus, has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus;
(iii) The Company has been is duly qualified as a foreign corporation for the transaction of to transact business and is in good standing under the laws of in each other jurisdiction in which it owns the conduct of its business or leases properties the ownership or conducts any business so as to require leasing of property requires such qualification, except to the extent that where the failure to be so qualified in any such jurisdiction qualify would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of upon the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates)whole;
(ivii) Those subsidiaries listed on Schedule VI hereto (Each of the “Scheduled Subsidiaries”) have each Significant Subsidiaries of the Company has been duly incorporated or organized and each is validly existing as an entity, and where such term applies, a corporation in good standing under the laws of its the jurisdiction of incorporation its organization and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or organization; and all the ownership or leasing of its property requires such qualification, except where failure to qualify would not in the issued shares of capital stock of each such Scheduled Subsidiary held by aggregate have a material adverse effect upon the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares and its subsidiaries taken as otherwise included in the Disclosure Package and the Final Prospectus) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates)a whole;
(viii) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject whichthat, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate aggregate, could reasonably be expected to have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations position of the Company and its subsidiaries taken as a wholesubsidiaries; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectusknowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(viiv) Neither This Agreement and the Company nor any of Pricing Agreement with respect to the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in Designated Securities have been duly authorized, executed and delivered by the performance or observance of any obligationCompany;
(v) The Designated Securities have been duly authorized, covenant or condition contained in any indentureexecuted, mortgageauthenticated, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations issued and delivered and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Designated Securities and the Indenture conform to the descriptions thereof in the Prospectus as amended or supplemented and in the Permitted Free Writing Prospectuses, if any;
(vi) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act and, assuming due execution and delivery by the Trustee, constitutes and, at the Time of Delivery for such Designated Securities (as defined in Section 3 hereof), will constitute, a valid and legally binding instrument, enforceable in accordance with its subsidiaries taken terms, subject, as a wholeto enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(vii) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture and Indenture, this Agreement and the Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries its subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries its subsidiaries is subject, (2) the effects of which would, individually or in the aggregate, be materially adverse to the Company and its subsidiaries taken as a whole, nor will such action result in any violation of the provisions of the Certificate Restated Articles of Incorporation or the By-laws Laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties except in respective properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the case of clauses (1) issue and (3) above that would not individually or in sale by the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations Company of the Designated Securities or the consummation by the Company of the transactions contemplated by this Agreement, such Pricing Agreement or the Indenture, except such as have been obtained under the Securities Act and its subsidiaries taken the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as a whole; andmay be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters;
(viii) The documents incorporated by reference in the Disclosure Package and the Final Prospectus as amended or any further amendment or supplement thereto, made by the Company prior to the Closing Date supplemented (other than the financial statements and related schedules and other financial and statistical data therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and
(ix) The Registration Statement at the date of the first use of the Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, as of their respective dates, as amended or supplemented and any further amendments and supplements thereto made by the Company prior to the Time of Delivery for the Designated Securities (other than the financial statements and related schedules and other financial and statistical data therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations thereunder; and such counsel does not know of any amendment to the Registration Statement required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required. In addition, such counsel shall state that she or members of her staff have participated in conferences with other officers and representatives of the Company, representatives of special counsel and the independent certified public accountants for the Company and the Underwriters and their representatives at which the contents of the Registration Statement, the General Disclosure Package and the Prospectus and related matters were discussed. However, except as specifically noted above, such counsel is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, or making any representation that she has independently verified or checked the accuracy, completeness or fairness of such statements. Notwithstanding the foregoing, no reason facts have come to such counsel’s attention that would lead her to believe that (except for financial statements and schedules and other financial and related statistical data as to which such counsel expresses no belief) (i) the Registration Statement (or any post-effective amendment thereto), as of such documents, when they were so filedthe last time it became effective preceding the time the applicable Pricing Agreement was entered into, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) the General Disclosure Package as of the Pricing Effective Time contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) the Prospectus (or any amendment or supplement thereto), as of its date and as of the Time of Delivery, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives you his written opinion, subject to opinion on behalf of the limitations and qualifications set forth in such opinionCompany, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectusclosing date, has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus, and all of the issued shares of capital stock of the Company (including the Shares) have been duly and validly authorized and issued and are fully paid and non-assessable and the Shares conform to the description of the Shares in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that no material liability or disability by reason of the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; , provided that such counsel shall state that he believes they believe that both you and he they are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries Each subsidiary of the Company listed on Schedule VI V hereto (the each “Scheduled Subsidiariessubsidiary”) have each has been duly incorporated or organized and each is validly existing as an entity, and where such term applies, a corporation in good standing under the laws of its jurisdiction of incorporation or organizationincorporation; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable assessable, and (except for directors’ qualifying shares and as otherwise included set forth in the Disclosure Package and the Final Pricing Prospectus) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; its subsidiaries, provided that such counsel shall state that he believes they believe that both you and he they are justified in relying upon such opinions and certificates);
(v) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiariesits subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a wholesubsidiaries; and, and to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectusknowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(vii) The issue and sale of the Securities Shares and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries its subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries its subsidiaries is subject, (2) nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriter;
(viii) Neither the Company nor any of its subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the case performance or observance of clauses (1) and (3) above that any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except for such defaults which would not individually or in the aggregate have a material adverse effect affect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and;
(viiiix) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, made by the Company prior to the Closing Date such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel has they have no reason to believe that any of such documents, when they became effective or were so filed, contained as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, therein not misleading; and
(x) The Company does not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the light of Registration Statement, the circumstances under Basic Prospectus or the Prospectus which they were made, are not misleadingfiled or incorporated by reference or described as required.
Appears in 1 contract
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing Date, in form and substance satisfactory to you, to the effect that:
(i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectus, has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that no material liability or disability by reason of the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectus) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(v) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(vii) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses (1) and (3) above that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and
(viii) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, made by the Company prior to the Closing Date (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel he has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxx, Executive Vice President Esq., Secretary and General Counsel for the Company, shall have furnished to the Representatives you his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has such been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New York, with power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Company, as of the date specified in the Final Prospectus, Company has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except qualification or is subject to the extent that no material liability or disability by reason of the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; , provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (Each subsidiary of the “Scheduled Subsidiaries”) have each Company has been duly incorporated or organized and each is validly existing as an entity, and where such term applies, a corporation in good standing under the laws of its jurisdiction of incorporation or organizationincorporation; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable assessable, and (except for directors’ ' qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectusshares) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; its subsidiaries, provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(v) To the best of such counsel’s 's knowledge, the Company and its subsidiaries have good and marketable title in fee simple to all real property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries (in giving the opinion in this clause, such counsel may state that no examination of record titles for the purpose of such opinion has been made, and that he is relying upon a general review of the titles of the Company and its subsidiaries, upon opinions of local counsel and abstracts, reports and policies of title companies rendered or issued at or subsequent to the time of acquisition of such property by the Company or its subsidiaries, upon opinions of counsel to the lessors of such property and, in respect of matters of fact, upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions, abstracts, reports, policies and certificates);
(vi) To the best of such counsel's knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiariesits subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ shareholders' equity or results of operations of the Company and its subsidiaries taken as a wholesubsidiaries; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vivii) Neither This Agreement has been duly authorized, executed and delivered by the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a wholeCompany;
(viiviii) The Securities have been duly authorized, issued and delivered and are fully paid and non-assessable; and the Securities conform to the descriptions thereof in the Prospectus;
(ix) To the best of such counsel's knowledge, the issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture Securities and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries its subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries its subsidiaries is subject, (2) nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties properties;
(x) No consent, approval, authorization, order, registration, filing or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained and made under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by CSFB;
(xi) Neither the Company nor any of its subsidiaries is in violation of its Certificate of Incorporation or By-laws, or to the best of such counsel's knowledge, in default in the case performance or observance of clauses any material obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound;
(1xii) and (3) above that would not individually or The statements set forth in the aggregate have Prospectus under the caption "Description of Common Stock", insofar as they purport to constitute a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations summary of the Company terms of the Securities, and its subsidiaries taken under the caption "Plan of Distribution", insofar as a whole; andthey purport to describe the provisions of the laws and documents referred to therein, are accurate, complete and fair;
(viiixiii) The Company is not an "investment company" or an entity "controlled" by an "investment company", as such terms are defined in the Investment Company Act;
(xiv) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, thereto made by the Company prior to the Closing Date Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel he has no reason to believe that any of such documents, when they such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; and
(xv) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; although he does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, except for those referred to in the opinion in subsection (xii) of this Section 7(c), he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in order the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and he does not know of any amendment to the Registration Statement required to be filed or of legal or governmental proceedings required to be described in the Registration Statement or the Prospectus which are not described as required or any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required;
Appears in 1 contract
Samples: Purchase Agreement (Financial Security Assurance Holdings LTD/Ny/)
Xxxxx X. XxxxxxxxXxxxx, Executive Vice President and General Counsel for the Company, Esq. shall have furnished to the Representatives his written opinion, subject as special counsel to the limitations Company, addressed to the Underwriters and qualifications set forth in such opinion, dated the Closing Delivery Date, in form and substance reasonably satisfactory to youthe Representatives, to the effect that:
(i) The Company has and each of its Significant Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction specified in such opinion, and have all power and authority (corporate and other) necessary to own its or hold their respective properties and conduct its business as described the businesses in the Disclosure Package and the Final Prospectuswhich they are engaged;
(ii) The Company, as of the date specified in the Final Prospectus, Company has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company (including the shares of Stock) have been duly and validly authorized and issued, are fully paid and non-assessable (subject to Section 630 of the BCL) and conform to the description thereof contained in the Prospectus; and all of the issued shares of capital stock of each Significant Subsidiary of the Company have been duly and validly authorized and issued and are fully paid, non- assessable (except as otherwise provided by applicable law) and (except for directors’ ' qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectusshares) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates)claims;
(viii) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of the Stock pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel;
(iv) To the best of such counsel’s 's knowledge and other than as set forth referred to under the caption "Business-- Environmental Matters" in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or of which any property or asset of the Company or any of the Scheduled Subsidiaries its subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiariesits subsidiaries, would individually or in the aggregate are reasonably likely to have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or ' equity, results of operations operations, business or prospects of the Company and its subsidiaries taken as a wholesubsidiaries; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(v) The Primary Registration Statement was declared effective under the Securities Act as of the date and time specified in such opinion, the Rule 462(b) Registration Statement, if any, was filed with the Commission on the date specified therein, the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) of the Rules and Regulations specified in such opinion on the date specified therein and, to the knowledge of such counsel, no stop order suspending the effectiveness of either of the Registration Statements has been issued and no proceeding for that purpose is pending or threatened by the Commission;
(vi) Neither The Registration Statements, as of their respective Effective Dates, and the Prospectus, as of its date, and any further amendments or supplements thereto, as of their respective dates, made by the Company nor any prior to the Delivery Date (other than the financial statements and other financial and statistical data contained therein, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default Securities Act and the Rules and Regulations; and the documents incorporated by reference in the performance or observance of any obligationProspectus (other than the financial statements and related schedules and other financial and statistical data contained therein, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument as to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or counsel need express no opinion), when they were filed with the Commission, complied as to form in all material respects with the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations requirements of the Company Exchange Act and its subsidiaries taken as a wholethe rules and regulations of the Commission thereunder;
(vii) To the best of such counsel's knowledge, there are no contracts or other documents which are required to be described in the Prospectus or filed as exhibits to the Registration Statements by the Securities Act or by the Rules and Regulations which have not been described or filed as exhibits to the Registration Statements or incorporated therein by reference as permitted by the Rules and Regulations;
(viii) This Agreement has been duly authorized, executed and delivered by the Company;
(ix) The issue and sale of the Securities shares of Stock by the Selling Shareholder and the compliance by the Company and the Selling Shareholder with all of the provisions of the Securities, the Indenture and this Agreement and the consummation by the Company and the Selling Shareholder of the transactions herein and therein on their respective parts contemplated hereby will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries its subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries its subsidiaries is bound or to which any of the property properties or assets of the Company or any of the Scheduled Subsidiaries its subsidiaries is subject, (2) nor will such actions result in any violation of the provisions of the Certificate of Incorporation charter or Byby-laws of the Company or (3) result in any violation of the provisions of its subsidiaries or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries its subsidiaries or any of their properties or assets; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters (in the case of clauses (1) and (3) above that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and
(viii) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, made by the Company prior to the Closing Date (other than the financial statements and related schedules thereinsuch state securities laws, as to which such counsel need express no opinion), when they were filed with no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the Commission complied as to form in all material respects with execution, delivery and performance of this Agreement by the requirements Company and the consummation of the transactions on the part of the Company contemplated hereby; and
(x) To the best of such counsel's knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Exchange Company to include such securities in the securities registered pursuant to the Registration Statements or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act. In rendering such opinion, as applicable, such counsel may state that his opinion is limited to matters governed by the Federal laws of the United States of America and the rules and regulations laws of the Commission thereunder; State of New York. Such counsel shall also have furnished to the Representatives a written statement, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representatives, to the effect that (x) such counsel has acted as counsel to the Company on a regular basis with respect to corporate and securities law matters (although the Company is also represented by its General Counsel and, with respect to certain other matters, by other outside counsel) and has acted as counsel to the Company in connection with the preparation of the Registration Statements, and (y) based on the foregoing, no reason facts have come to the attention of such counsel which lead him to believe that any (I) the Registration Statements (other than the financial statements and other financial and statistical data contained therein, as to which such counsel need make no such written statement), as of such documents, when they were so filedtheir respective Effective Dates, contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (other than the financial statements and other financial and statistical data contained therein, as to which such counsel need make no such written statement) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (II) any document incorporated by reference in the Prospectus or any further amendment or supplement to any such incorporated document made by the Company prior to the Delivery Date (other than the financial statements and other financial and statistical data contained therein, as to which such counsel need make no such written statement), when they became effective or were filed with the Commission, as the case may be, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The foregoing opinion and statement may be qualified by a statement to the effect that, except as stated in paragraph (ii) above, such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statements or the Prospectus.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxx, Executive Vice President and General Counsel for the Company, Esq. shall have furnished to the Representatives his written opinion, subject as special counsel to the limitations Company, addressed to the Underwriters and qualifications set forth in dated such opinion, dated the Closing Delivery Date, in form and substance reasonably satisfactory to youthe Representatives, to the effect that:
(i) The Company has and each of its Significant Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction specified in such opinion, and have all power and authority (corporate and other) necessary to own its or hold their respective properties and conduct its business as described the businesses in the Disclosure Package and the Final Prospectuswhich they are engaged;
(ii) The CompanyIndenture has been duly authorized, as executed and delivered by the Company and, assuming due execution and delivery by the Trustee, constitutes a valid and binding agreement of the date specified Company enforceable against the Company in accordance with its terms, subject to the Final Prospectuseffects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing;
(iii) The Notes have been duly authorized, executed and delivered by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with this Agreement, will be duly and validly issued and outstanding and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing;
(iv) The Company has an authorized capitalization as set forth under the caption “Capitalization” in the Final Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable (subject to Section 630 of the BCL) and conform to the description thereof contained in the Prospectus; all of the shares of Common Stock issuable upon conversion of the Notes have been duly and validly authorized and reserved for issuance upon such conversion and, when issued and delivered in accordance with the terms of the Indenture, will be duly and validly issued, fully paid and non-assessable (subject to Section 630 of the BCL); and all of the issued shares of capital stock of each Significant Subsidiary of the Company have been duly and validly authorized and issued and are fully paid, non- assessable (except as otherwise provided by applicable law) and (except for directors’ ' qualifying shares and as otherwise included in the Disclosure Package and the Final Prospectusshares) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiariesclaims; provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(v) To The Indenture and the best of such counsel’s knowledge and other than as set forth Notes conform to the description thereof contained in the Disclosure Package and the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final Prospectus, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(vii) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses (1) and (3) above that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and
(viii) The documents incorporated by reference in the Disclosure Package and the Final Prospectus or any further amendment or supplement thereto, made by the Company prior to the Closing Date (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to the Representatives you his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has such power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final ProspectusOffering Circular;
(ii) The Company, as of the date specified in the Final ProspectusOffering Circular, has an authorized capitalization as set forth under the caption “Capitalization” in the Final ProspectusOffering Circular and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except or is subject to the extent that no material liability or disability by reason of the failure to be so qualified in any such jurisdiction would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company; , provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI II hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entity, and where such term applies, in good standing under the laws of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares and as otherwise included set forth in the Disclosure Package and the Final ProspectusOffering Circular) are owned directly or indirectly by the Company, to such counsel’s knowledge, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or such Scheduled Subsidiaries; , provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(v) The Company and the Scheduled Subsidiaries have good and marketable title in fee simple to all real property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Offering Circular or would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole and do not interfere with the use made and proposed to be made of such property by the Company and the Scheduled Subsidiaries; and any real property and buildings held under lease by the Company and the Scheduled Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Scheduled Subsidiaries (in giving the opinion in this clause, such counsel may state that no examination of record titles for the purpose of such opinion has been made, and that he is relying upon a general review of the titles of the Company and the Scheduled Subsidiaries, upon opinions of local counsel and abstracts, reports and policies of title companies rendered or issued at or subsequent to the time of acquisition of such property by the Company or the Scheduled Subsidiaries, upon opinions of counsel to the lessors of such property and, in respect of matters of fact, upon certificates of officers of the Company or the Scheduled Subsidiaries, provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions, abstracts, reports, policies and certificates);
(vi) To the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final ProspectusOffering Circular, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries is a party or of which any property of the Company or any of the Scheduled Subsidiaries is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of such counsel’s knowledge and other than as set forth in the Disclosure Package and the Final ProspectusOffering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vivii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture, except, such as may be required under the Act in connection with the shares of Stock issuable upon conversion of the Securities and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Purchasers;
(viii) The resolutions of the Board of Directors of the Company approving the issuance of the Securities have reserved the Conversion Shares for issuance;
(ix) Neither the Company nor any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except for such defaults that which would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(viix) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not (1) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Scheduled Subsidiaries is a party or by which the Company or any of the Scheduled Subsidiaries is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (3) result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses (1) and (3) above that which would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and;
(viiixi) The documents incorporated by reference in the Disclosure Package and the Final Prospectus Offering Circular or any further amendment or supplement thereto, made by the Company prior to the Closing Date such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel he has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(xii) No registration of the Securities under the Act, and no qualification of an indenture under the United States Trust Indenture Act of 1939 with respect thereto, is required for the offer, sale and initial resale of the Securities by the Purchasers in the manner contemplated by this Agreement; and
(xiii) The Company is not, and after giving effect to the offering and sale of the Securities to be issued and sold by the Company under this Agreement and the Indenture and the application of the net proceeds from such sale as described in the Offering Circular under the caption “Use of Proceeds”, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act.
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