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. Xxxxxxxx, Executive Vice President and General Counsel for Xxxx-Xxxxx ---------------------------- Notary Public State of New York [Illegible] COMPANY STOCKHOLDERS POWER OF ATTORNEY AND IRREVOCABLE PROXY Reference is hereby made to that Certain Company Stockholders Voting Agreement (the Company, shall have furnished to the Representatives his written opinion, subject to the limitations and qualifications set forth in such opinion"VOTING AGREEMENT"), 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 hereof, of which this Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable Proxy have the respective meanings ascribed to such terms in the Final ProspectusVoting Agreement. This Irrevocable Proxy is being delivered by the undersigned Company Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting Agreement. The undersigned Granting Stockholder hereby irrevocably appoints Veeco Instruments Inc., has an authorized capitalization a Delaware corporation ("VEECO"), and each of Veeco's officers and other designees (each such Person, a "PROXYHOLDER") as set forth under the caption “Capitalization” Granting Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law, with full power of substitution, in the Final Prospectus;
Granting Stockholder's name, place and stead, to vote and otherwise act (iiiby written consent or otherwise) 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 with respect 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 all of the Company Shares now owned of record or Beneficially Owned by the Granting Stockholder and its subsidiaries taken as a whole of which the Granting Stockholder may hereafter acquire record or Beneficial Ownership, and any other securities, if any (such counsel being the "OTHER SECURITIES"), which the Granting Stockholder is entitled to rely in respect vote at any meeting 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 stockholders of the Company (whether annual or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you special and he are justified whether or not an adjourned or postponed meeting) or consent 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 lieu of any obligation, covenant such meeting 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.otherwise:
Appears in 2 contracts
Samples: Voting Agreement (Veeco Instruments Inc), Voting Agreement (Veeco Instruments Inc)
Xxxxx X. Xxxxxxxx, Executive Vice President Xxxx and General Counsel for Xxxxxx X. Xxx hereby each accepts his appointment as a Shareholders’ Agent. Parent shall be entitled to deal exclusively with the Company, shall have furnished Shareholders’ Agents on all matters relating 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) the determination of Final Working Capital pursuant to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
Section 3.1, (ii) The Company, as the determination of the date specified in the Final ProspectusEarnout Amount pursuant to Section 3.2, 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 the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (iv) the transaction enforcement of business any rights the Holders may have against Parent or the Surviving Entity under this Agreement, 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 shall 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 conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Company; provided that Holders, then the Holders of a majority of the shares of Company Preferred Stock and Company Common Stock as of immediately prior to the Effective Time of Merger I, shall, within ten (10) calendar days after such counsel death or disability, appoint a successor agent and, promptly thereafter, shall state that he believes that both you and he are justified in relying upon notify Parent of the identity of such opinions and certificates);
(iv) Those subsidiaries listed on Schedule VI hereto (successor. Any such successor shall become one of 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 Shareholders’ Agents” for purposes 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 the determination 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 Final Working Capital pursuant 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 subjectSection 3.1, (2) result in any violation the determination of the provisions of the Certificate of Incorporation or By-laws of the Company or Earnout Amount pursuant to Section 3.2, (3) result the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any violation loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the provisions Shareholders’ Agents and arising out of or in connection with the acceptance or administration of the Shareholders’ Agents’ duties hereunder, including the reasonable fees and expenses of any statute legal counsel or any orderother professional retained by the Shareholders’ Agents, rule or regulation of any court or governmental agency or body having jurisdiction over in connection with the Company or any acceptance and administration 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, stockholdersShareholders’ 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 misleadingAgents’ duties hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Arthrocare Corp), Merger Agreement (Arthrocare Corp)
Xxxxx X. XxxxxxxxXxxxxx, Executive Vice President and General Counsel counsel for the CompanyBank, shall have furnished to the Representatives you his written opinion, subject addressed to the limitations you and qualifications set forth in such opinion, dated the Closing Date, in form and substance satisfactory to youyou and your counsel, substantially to the effect that:
(i) The Company Bank has such been duly incorporated and is validly existing as a bank in good standing under the laws of the State of Delaware, United States, with full power and authority (corporate and other) to own its properties and conduct its business business, as described in presently owned and conducted by it, and to enter into and perform its obligations under this Agreement, the Disclosure Package Spread Account Agreement and the Final ProspectusPooling and Servicing Agreement (collectively, referred to in this subsection (c) as the "Agreements"), the Cer tificates and the CIA ---------- Certificates and had at all times, and now has, the power, authority and legal right to acquire, own and transfer the Receivables;
(ii) The CompanyBank is duly qualified to do business and is in good standing, and under state laws, as they are currently interpreted and enforced, has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would materially and adversely affect the enforceability of any Receivable by the Bank or the Trustee or would adversely affect the ability of the date specified in the Final Prospectus, has an authorized capitalization as set forth Bank to perform its obligations under the caption “Capitalization” in Agreements, the Final ProspectusCertificates or the CIA Certificates;
(iii) The Company has Certificates and the CIA Certificates have been duly qualified as a foreign corporation for authorized, executed and delivered by the transaction Bank and, when duly authenticated by the Trustee in accor dance with the terms of business the Pooling 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 qualificationServicing Agreement and, except with respect to the extent that Certificates, delivered to and paid for by the failure Managers in accordance with the terms of this Agreement, or, with respect to be so qualified in any such jurisdiction would not individually or the CIA Certificates, delivered to and paid for by the purchasers thereof as provided in the aggregate have a material adverse effect on the consolidated financial positionCIA Purchase Agreement, stockholders’ equity or results of operations of the Company will be validly issued and its subsidiaries taken as a whole (such counsel being outstanding and entitled to rely in respect of the opinion in this clause upon opinions of local counsel benefits provided by the Pooling 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)Servicing Agreement;
(iv) Those subsidiaries listed on Schedule VI hereto (Each of the “Scheduled Subsidiaries”) have each Agreements has been duly incorporated authorized, executed and delivered by the Bank and constitutes the legal, valid and binding agreement of the Bank enforceable against the Bank in accordance with its terms, subject, as to enforceability to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws relating to or organized affecting the rights and each is validly existing as an entityremedies of creditors generally, and where such term applies, (B) the application of principles of equity (regardless of whether considered and applied in good standing under a proceeding in equity or at law) and the laws of its jurisdiction of incorporation or organization; rights and all powers 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)FDIC;
(v) The Trust is not now, and immediately following the sale of the Certificates pursuant to this Agreement will not be, required to register under the 1940 Act;
(vi) No consent, approval, authorization or order of any governmental agency or body is required for (A) the execution, delivery and performance by the Bank of its obligations under the Agreements, the Certificates or the CIA Certificates, or (B) the issuance or sale of the Certificates or the CIA Certificates, except the filing of Uniform Commercial Code financing statements with respect to the Receivables and the approval of the Office of the State Bank Commissioner of the State of Delaware, United States;
(vii) To the best knowledge of such counsel’s , neither the execution and delivery of the Agreements or the Certificates or the CIA Certificates by the Bank nor the performance by the Bank of the transactions therein contemplated nor the fulfillment of the terms thereof does or will result in any violation of any statute or regulation or any order or decree of any court or governmental authority binding upon the Bank or its property, or conflict with, or result in a breach or violation of any term or provision of, or result in a default under any of the terms and provisions of, the Bank's charter or by-laws or any material indenture, loan agreement or other material agreement to which the Bank is a party or by which the Bank is bound;
(viii) To the knowledge and other than as set forth in the Disclosure Package and the Final Prospectusof such counsel after due investigation, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries Bank is a party or of to which any property of the Company or any of the Scheduled Subsidiaries Bank is the subject which, if determined adversely to the Company or any of the Scheduled Subsidiaries, would individually or in the aggregate (A) would have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations ability of the Company and Bank to perform its subsidiaries taken as a whole; andobligations under the Agreements or the Certificates, to (B) assert 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 invalidity of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation Agreements, the Certificates or By-laws the CIA Certificates, (C) seek to prevent the issuance, sale 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 delivery of the Company and its subsidiaries taken as a whole;
(vii) The issue and sale of Certificates or 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 CIA Certificates or any of the Scheduled Subsidiaries is a party transactions contemplated by the Agreements or by which (D) seek to affect adversely the Company or any United States federal income tax attributes of the Scheduled Subsidiaries Certificates described in the Offering Circular;
(ix) Such counsel has not independently verified and is bound not passing upon, and does not assume any responsibility for, the accuracy, completeness or to which any fairness 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 information contained in the case of clauses Offering Circular. Based upon discussion with the Bank, its accountants and others, however, no facts have come to his attention that cause him to believe that the Offering Circular (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 except for the financial statements statements, financial schedules and related schedules other financial data included therein, as to which such counsel need express expresses no opinionview), 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 contains any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted omits 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, therein not misleading.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxx, Executive Vice Vice-President and General Counsel for Chief Legal and Administrative Officer of the CompanyCompany and Anthem Insurance, 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 Datesuch Time 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 is validly existing as a mutual insurance company under the laws of the date specified State of Indiana and upon the filing of the amended Articles of Incorporation of Anthem Insurance with the Secretary of State of the State of Indiana simultaneously with the First Time of Delivery, Anthem Insurance will be duly incorporated and validly existing as a stock insurance company under the laws of the State of Indiana, in each case with corporate power and authority to own its property 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 an authorized capitalization as described in the Prospectus, and all of the issued shares of the Stock (including the Shares being delivered at such Time of Delivery) have been duly qualified as a foreign corporation for the transaction of business authorized and is in good standing under the laws of each other jurisdiction in which it owns validly issued and are or leases properties or conducts any business so as to require such qualification, except (with respect to the extent that Shares being delivered at such Time of Delivery, when paid for in accordance with the failure terms hereof) will be fully paid and nonassessable; the Member Shares, when issued pursuant to the Plan, will 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 duly authorized and validly issued and fully paid and nonassessable; stockholders of the Company and its subsidiaries taken as a whole (such counsel being entitled have no preemptive rights with respect to rely in respect the Shares arising out of the opinion in this clause upon opinions Articles of local counsel and in respect of matters of fact upon certificates of officers Incorporation or the By-Laws of the Company, the Plan, or as a matter of Indiana law; provided that such counsel shall state that he believes that both you and he are justified the Transaction Shares conform in relying upon such opinions and certificates)all material respects to the description of the Stock contained in the Prospectus;
(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;
(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 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 Demutualization or the Plan or the approval thereof, the Indiana Commissioner's Order or the consummation of the transactions contemplated thereby or the offering of the Shares 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 which, if determined adversely to the Company Company, Anthem Insurance or any of the Scheduled Subsidiariestheir respective subsidiaries, would could reasonably be expected to have, 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) Neither Each of this Agreement and 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 obligationUnits Underwriting Agreement has been duly authorized, 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 executed and delivered 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 wholeAnthem Insurance;
(viixi) The issue None of the Company, Anthem Insurance and any of their respective subsidiaries is or, after giving effect to the offering and sale of the Securities Shares, the issuance and sale of the Units pursuant to the Units Underwriting Agreement, the issuance of the Member Shares pursuant to the Plan, the consummation of the Demutualization and the application of the proceeds of the sale of the Shares and the Units 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;
(xii) The issuance and sale of the Shares by the Company to the Underwriters hereunder, the issuance of the Member Shares pursuant to the Plan, the issuance and sale of the Units pursuant to the Units Underwriting Agreement, the entry into and compliance by the Company and Anthem Insurance with all of the provisions of the Securitiesthis Agreement, the Indenture Units Underwriting Agreement and this Agreement the Plan, 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 BCBS License, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company Company, Anthem Insurance or any of the Scheduled Subsidiaries their respective subsidiaries is a party or by which the Company Company, Anthem Insurance or any of the Scheduled Subsidiaries their respective subsidiaries is bound or to which any of the property or assets of the Company Company, Anthem Insurance or any of the Scheduled Subsidiaries their respective subsidiaries is subject, (2) or which affects the validity, performance or consummation of the Plan, the Demutualization or the transactions contemplated by this Agreement, the Units Underwriting Agreement or the Plan, nor will such action result in any violation of the provisions of (x) the Certificate Articles of Incorporation or the By-laws Laws or similar organizational documents, as amended, of the Company Company, Anthem Insurance or any of their respective subsidiaries or (3y) result in any violation of the provisions of 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 or any of the Scheduled Subsidiaries Company, Anthem Insurance or any of their properties except respective subsidiaries or any of their properties, in each case the case effect of clauses which (1) and (3) above that would not 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 aggregate, would be either to adversely affect the validity or performance of this Agreement, the Units Underwriting Agreement, the Plan or the Transaction Shares, or to have a material adverse effect on Material Adverse Effect;
(xiii) Each of the current Company, Anthem Insurance and each of their respective subsidiaries has made all Filings required to be made, and has obtained all Approvals required to be obtained, under any law or future consolidated financial positionregulation of the United States or any state thereof for the issuance and sale by the Company of the Shares, stockholders’ equity or results the issuance of operations the Member Shares pursuant to the Plan, the issuance and sale of the Units pursuant to the Units Underwriting Agreement, the compliance by the Company and its subsidiaries taken Anthem Insurance with all provisions of this Agreement and the Units Underwriting Agreement and the consummation of the transactions herein and therein contemplated, except for such Filings and Approvals as a whole; and
(viiii) The documents incorporated may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by reference the Underwriters and the purchase and distribution of the Units by the Units Underwriters, or (ii) individually or in the Disclosure Package aggregate, would not adversely affect the validity of the Shares, the Member Shares or the Units or have a Material Adverse Effect; and all other Filings and Approvals required to be made or obtained on or prior to the Final Prospectus Plan Effective Date in connection with the Demutualization or any further amendment or supplement thereto, made for the consummation by the Company prior and Anthem Insurance of the transactions contemplated by this Agreement, the Units Underwriting Agreement or the Plan have been so obtained and are in full force and effect, except as described in the Prospectus or to the Closing Date extent that the failure to make any such Filings or to have any such Approvals would not have, individually or in the aggregate, a Material Adverse Effect and would not adversely affect the validity, performance of or consummation of the transactions contemplated by this Agreement, the Units Underwriting Agreement or the Plan;
(other than xiv) 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;
(xv) The statements set forth in the Prospectus under the captions "Description of Capital Stock", insofar as they purport to constitute a summary of the terms of the stock, and under the captions "Risk Factors - 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 statements condition and related schedules thereinresults of operations"; "The Plan of Conversion", "The Business of Anthem - The Blue Cross Blue Shield License", "Legal and Regulatory Matters", "Certain United States Tax Consequences to Non-U.S. Holders of Common Stock" and "Underwriting", insofar as they purport to which such counsel need express no opinion)describe the provisions of the laws and documents referred to herein, when they were filed with the Commission complied as to form are accurate and complete 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.respect;
Appears in 1 contract
Samples: Underwriting Agreement (Anthem Inc)
Xxxxx X. XxxxxxxxXxxxxxx owns FLX, Executive Vice President and General Counsel for thus Parent and the CompanyPurchaser, shall have furnished and will become, indirectly, the owner of all Shares acquired by the Purchaser through the Offer. Xx. Xxxxxxx is also the chairman of the Board of Directors of the Company (the "Company Board"). As a result of Xx. Xxxxxxx'x dual status, the Company Board appointed a special committee of independent directors (the "Special Committee") to consider FLX's proposal to make the Offer and accomplish the Merger. See BACKGROUND OF THE OFFER, below. AFTER RECEIVING THE REPORT OF THE SPECIAL COMMITTEE THE COMPANY BOARD HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER AND THE MERGER, AND HAS DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE HOLDERS OF SHARES AND UNANIMOUSLY RECOMMENDS THAT THE COMPANY'S SHAREHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT THERETO. Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") has delivered to the Representatives his written opinion, subject to the limitations and qualifications set forth in such Special Committee its opinion, dated as of May 19, 2000 (the Closing Date, in form and substance satisfactory to you"Fairness Opinion"), to the effect that:
, as of such date and based upon and subject to certain matters stated therein, the consideration to be received by the holders of Shares (other than FLX and its affiliates) pursuant to the Offer and the Merger is fair from a financial point of view to such holders. The full text of the Fairness Opinion is attached as Exhibit A hereto. Holders of Shares are urged to, and should, read the Fairness Opinion carefully in its entirety. The Company has informed Purchaser that, as of May 15, 2000, there were (i) The Company has such power 17,058,833 Shares issued and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
outstanding, (ii) The 3,015,764 Shares held in the treasury of 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;
and (iii) 1,099,664 Shares issuable pursuant to the exercise of options. The Merger Agreement provides, among other things, that the Company has been duly qualified as will not, without the prior written consent of Parent, issue any additional Shares (except upon the exercise of outstanding options). FLX presently owns 4,501,310 Shares, which it will contribute to Purchaser. Based on the foregoing, Xxxxxxxxx believes that the Minimum Condition will be satisfied (assuming that the number of Shares outstanding on the expiration of the Offer and on May 15, 2000 are the same) if 6,265,285 Shares are validly tendered and not withdrawn prior to the expiration of the Offer. Consummation of the Merger is conditioned upon, among other things, the approval and adoption by the requisite vote of shareholders of the Company of the Merger Agreement, if required by applicable law and the Company's Articles of Incorporation (the "Articles of Incorporation"). See PLANS FOR THE COMPANY; OTHER MATTERS, below. Under the HBCA and pursuant to the Articles of Incorporation, the affirmative vote of the holders of a foreign simple majority of the outstanding Shares is the only vote of any class or series of the Company's capital stock that is required to approve the Merger Agreement and the Merger. If the Purchaser owns at least 90% of the outstanding Shares, Purchaser and Parent may effect a "short-form" merger, described below, for which no shareholder vote is required. Under Section 415-75.5 of the HBCA, if a corporation for owns at least 90% of the transaction of business and is in good standing under the laws outstanding shares of each other jurisdiction in which it owns class of two or leases properties more subsidiary corporations, the corporation holding such stock may merge such subsidiaries together, without any action or conducts any business so as to require such qualification, except to vote on the extent part of the boards of directors or the shareholders of either corporation (a "short-form merger"). In the event that the failure to be so qualified in any such jurisdiction would not individually or Purchaser acquires in the aggregate have at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, then, at the election of Parent, a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations short-form merger could be effected without any further approval of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of Board or the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers shareholders of the Company; provided that such counsel shall state that he believes that both you and he are justified . If Purchaser does not own 90% of the outstanding Shares following consummation of the Offer, Parent or Purchaser could (i) seek to purchase additional Shares in relying upon such opinions and certificates);
the open market or otherwise in order to reach the 90% threshold, permitting Parent to carry out a short-form merger, or (ivii) Those subsidiaries listed choose to proceed with the "long-form merger" described above. If Purchaser chooses to purchase additional Shares on Schedule VI hereto (the “Scheduled Subsidiaries”) have each been duly incorporated open market in order to reach the 90% threshold, the per Share consideration paid for any Shares so acquired may be greater or organized and each is validly existing as an entityless than the Offer Price. Parent presently intends to carry out a short-form merger, and where such term applies, in good standing if permitted to do so 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 issuedHBCA, 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 pursuant 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 whichPurchaser will be merged with and into Company. See PLANS FOR THE COMPANY; OTHER MATTERS, 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 misleadingbelow. THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION AND YOU SHOULD READ THEM IN THEIR ENTIRETY BEFORE YOU MAKE A DECISION WITH RESPECT TO THE OFFER.
Appears in 1 contract
Samples: Offer to Purchase (Murdock David H)
Xxxxx X. XxxxxxxxXxxx, Executive Vice President as Voting Trustee, Xxxxxx X. Xxxx, as Trustee of the Xxxxxxx X. Xxxx Irrevocable Trust dated May 20, 1997, Xxxxxxx X. XxxXxxxxxx, as Trustee of the Xxxxxxx X. Xxxx Grantor Trust dated May 21, 1997, and General Counsel for Xxxxx X. Xxxx, as Trustee of the Xxxxx X. Xxxx Living Trust dated May 26, 1997 (collectively, the "Xxxx Parties"), the Xxxx Family, the Company, shall Marin Conveyancing Corporation, a California corporation ("MCC"), and Headlands Insurance Agency, Inc., a California corporation ("HIA"), have furnished to entered into and executed that certain Voting Trust Agreement, for the Representatives his written opinionStock of the Company, subject to the limitations MCC and qualifications set forth in such opinionHIA, dated September 15, 1997, as amended October 17, 1997 (the Closing Date"Voting Trust Agreement"). The Voting Trust Agreement has been duly authorized, executed and delivered by, and is valid and enforceable in form accordance with its terms against, the Company and substance satisfactory to youthe Xxxx Parties. To the best knowledge of such counsel, to the effect that:
Voting Trust Agreement has not been further amended or revoked, canceled or superseded. The execution and delivery of the Underwriting Agreement by Xxxxx X. Xxxx, as Voting Trustee under the Voting Trust Agreement, and the performance by the Voting Trustee of its obligations thereunder (i) The Company has such power have been duly authorized, executed and authority (corporate delivered by all necessary action on the part of the Voting Trustee, and other) to own is a valid and binding agreement of, the Voting Trustee, enforceable in accordance with its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
terms; (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 Voting Trust Agreement; and (iii) will not constitute a breach of, or By-laws a default under, the Voting Trust Agreement or any other agreement to which the Voting Trustee is a party. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company or (3) result in any violation Company, representatives of the provisions of any statute independent public 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 certified public accountants for the Company and its subsidiaries taken as a whole; with Representatives of the Underwriters at which the contents of the Registration Statement and the Prospectus, and any supplements or amendments thereto, and related matters were discussed and
(viii) The documents incorporated by reference , although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure Package and Registration Statement or 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 opinionspecified above), when they were filed with and any supplements or amendments thereto, on the Commission complied as to form in all material respects with the requirements basis of the Act or the Exchange Actforegoing, as applicable, and the rules and regulations of the Commission thereunder; and such counsel nothing has no reason come to their attention which would lead them to believe that either the Registration Statement or any of amendments thereto, at the time the Registration Statement or such documents, when they were so filedamendments 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, as of its date or at the First Closing Date or the Second Closing Date, as the case may be, 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, not misleadingmisleading (it being understood that such counsel need express no belief as to the financial statements or schedules or other financial or statistical data derived therefrom, included or incorporated by reference in the Registration Statement or the Prospectus or any amendments or supplements thereto). EXHIBIT B OPINION OF SELLING SHAREHOLDER COUNSEL -------------------------------------- The opinion of such counsel pursuant to Section 5(h) shall be rendered to the Representatives at the request of the Company and shall so state therein. References to the Prospectus in this Exhibit B include any supplements thereto --------- at the Closing Date.
(i) The Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of, and is a valid and binding agreement of, each such Selling Shareholder, enforceable in accordance with its terms, except as rights to indemnification thereunder may be limited by applicable law and except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles.
(ii) The execution and delivery by and on behalf of each such Selling Shareholder of, and the performance by each such Selling Shareholder of its obligations under, the Underwriting Agreement and its Custody Agreement and its Power of Attorney will not contravene or conflict with, result in a breach of, or constitute a default under, the charter or by-laws, partnership agreement, trust agreement or other organizational documents, as the case may be, of each such Selling Shareholder, or, to the best of such counsel's knowledge, violate or contravene any provision of applicable law or regulation, or violate, result in a breach of or constitute a default under the terms of any other agreement or instrument to which each such Selling Shareholder is a party or by which it is bound, or any judgment, order or decree applicable to each such Selling Shareholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over each such Selling Shareholder.
(iii) Each such Selling Shareholder has good and valid title to all of the Common Shares which may be sold by each such Selling Shareholder under the Underwriting Agreement and has the legal right and power, and all authorizations and approvals required under its charter and by-laws, partnership agreement, trust agreement or other organizational documents, as the case may be, to enter into the Underwriting Agreement and its Custody Agreement and its Power of Attorney, to sell, transfer and deliver all of the Common Shares which may sold by each such Selling Shareholder under the Underwriting Agreement and to comply with its other obligations under the Underwriting Agreement, its Custody Agreement and its Power of Attorney.
(iv) Each of the Custody Agreement and Power of Attorney of each such Selling Shareholder has been duly authorized, executed and delivered by and on behalf of each such Selling Shareholder and is a valid and binding agreement of each such Selling Shareholder, enforceable in accordance with its terms, except as rights to indemnification thereunder may be limited by applicable law and except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles. Assuming that the Underwriters purchase the Common Shares which are sold by each such Selling Shareholder pursuant to the Underwriting Agreement for value, in good faith and without notice of any adverse claim, the delivery of such Common Shares pursuant to the Underwriting Agreement will pass good and valid title to such Common Shares, free and clear of any security interest, mortgage, pledge, lieu encumbrance or other claim.
(v) To the best of such counsel's knowledge, no consent, approval, authorization or other order of, or registration or filing with, any court or governmental authority or agency, is required for the consummation by each such Selling Shareholder of the transactions contemplated in the Underwriting Agreement, except as required under the Securities Act, applicable state securities or blue sky laws, and from the NASD.
(vi) The Company has entered into a settlement agreement dated as of April 11, 1996, by and between Xxxxxx X. Xxxx, Xxxxxxxxx X. Xxxx, D. Xxxxxxx Xxxx, Jr., Xxxxxxxxx X. Xxxx, Xxxxxxxxxxx X. Xxxx (collectively, the "Xxxx Family"), Xxxxx X. Xxxx, Xxxxxxx X. Xxxx, Headlands Insurance Agency, Inc., and Marin Conveyancing Corporation (the "Settlement Agreement"). The Settlement Agreement
(i) has been duly authorized, executed and delivered by each member of the Xxxx Family and, assuming due authorization, execution and delivery by the other parties thereto, and is valid and enforceable against each member of the Xxxx Family in accordance with its terms, (ii) resolves each and every claim among the parties and (iii) is in full force and effect. To the best of such counsel's knowledge, the Xxxx Family has no other claims or rights against the Company outside the Settlement Agreement and there are no other agreements or accords which attempt to resolve any dispute among the parties.
(vii) The Company has entered into a tax indemnification agreement dated as of October 15, 1997, by and between the Company and The Xxxxxxx X. Xxxx Irrevocable Trust, The Xxxxxxx X. Xxxx Grantor Trust, Xxxxx X. Xxxx Living Trust, Xxxxxxx X. Xxxx, and the Xxxx Family (the "Tax Agreement"). The statements in the Prospectus under the caption "Termination of S Corporation Status" and elsewhere, fairly describe and summarize, in all material respects, the Tax Agreement. The Tax Agreement has been duly authorized, executed and delivered by, and is valid and enforceable against, each member of the Xxxx Family in accordance with its terms and no other indemnification agreement exists respecting the subject matter of the Tax Agreement.
(viii) None of the Selling Shareholders have been admitted to membership in the National Association of Securities Dealers (the "NASD") under the provisions of Articles II and III of the By-laws of the NASD. In addition, none of the Selling Shareholders are (i) a sole proprietor, partner, officer, director or branch manager of any member of the NASD or a person occupying a similar status or performing similar functions, (ii) a person engaged in the investment banking or securities business who is directly or indirectly controlling or controlled by a member of the NASD, (iii) a person who is also the beneficial owner of capital stock of a member of the NASD, or (iv) a person who controls, is controlled by or is under common control with a member of the NASD.
(ix) Upon consummation of the closing on the First Closing Date, the "Agreement Between Shareholders and Operating Philosophy and Principles of a New Corporation dated April 30, 1986" shall terminate and cease to be effective as of such First Closing Date.
(x) Xxxxx X. Xxxx, as Voting Trustee, Xxxxxx X. Xxxx, as Trustee of the Xxxxxxx X. Xxxx Irrevocable Trust dated May 20, 1997, Xxxxxxx X. XxxXxxxxxx, as Trustee of the Xxxxxxx X. Xxxx Grantor Trust dated May 21, 1997, and Xxxxx X. Xxxx, as Trustee of the Xxxxx X. Xxxx Living Trust dated May 26, 1997 (collectively, the "Xxxx Parties"), the Xxxx Family, the Company, Marin Conveyancing Corporation, a California corporation ("MCC"), and Headlands Insurance Agency, Inc., a California corporation ("HIA"), have entered into and executed that certain Voting Trust Agreement, for the Stock of the Company, MCC and HIA, dated September 15, 1997, as amended October 17, 1997 (the "Voting Trust Agreement"). The Voting Trust Agreement has been duly authorized, executed and delivered by, and is valid and enforceable in accordance with its terms against, each member of the Xxxx Family. The Voting Trust transfers legal title to the Common Shares to be sold by the Selling Shareholders under the Underwriting Agreement to the Voting Trustee. To the best knowledge of such counsel, the Voting Trust Agreement has not been further amended or revoked, canceled or superseded. The execution and delivery of the Underwriting Agreement by Xxxxx X. Xxxx, as Voting Trustee under the Voting Trust Agreement, and the performance by the Voting Trustee of its obligations thereunder (i) have been duly authorized, executed and delivered by all necessary action on the part of the Voting Trustee, and is a valid and binding agreement of, the Voting Trustee, enforceable in accordance with its terms; (ii) will not result in any violation of the provisions of the Voting Trust Agreement; and (iii) will not constitute a breach of, or a default under, the Voting Trust Agreement or any other agreement to which the Voting Trustee is a party.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxXxx, Executive Vice President and General Associate Counsel for of Torchmark Corporation, the Companyparent of United, shall have furnished to the Representatives his her written opinion, subject to the limitations and qualifications set forth in such opinion, opinion dated the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to youthe Representatives, 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 this Agreement has been duly qualified as a foreign corporation for the transaction of business authorized, executed 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 delivered by 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 Selling Stockholder 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 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 statute, 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 such Selling Stockholder is a party or by which the Company or any of the Scheduled Subsidiaries such Selling Stockholder is bound or to which any of the property or assets of the Company or any of the Scheduled Subsidiaries such Selling Stockholder 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 such Selling Stockholder or the Company property of such Selling Stockholder, except for any such breach, violation or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses (1) and (3) above that default which would not not, individually or in the aggregate aggregate, have a material adverse effect on the current business, assets, or future consolidated financial position, stockholders’ equity condition of such Selling Stockholder or results the ability of operations such Selling Stockholder to consummate the sales of the Company Shares;
(ii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Shares hereunder except such as have been obtained under the Securities Act and its subsidiaries taken such as a wholemay be required under state or foreign securities or blue sky laws in connection with the purchase and distribution of such Shares by the Underwriter and such approval of the underwriting arrangements as may be required under the rules of the NASD;
(iii) such Selling Stockholder has full right, power and authority to sell, assign, transfer and deliver such Shares hereunder; and
(viiiiv) The documents incorporated upon delivery of the Shares on behalf of the Selling Stockholder and upon payment therefor by reference the Underwriters pursuant to the Underwriting Agreement, good and valid title to the Shares to be sold by such Selling Stockholders, free and clear of all liens, encumbrances, equities or claims, will be transferred to the Underwriters to the extent the Underwriters have purchased such Shares in the Disclosure Package good faith and the Final Prospectus without notice of any such lien, encumbrance, equity or claim or any further amendment or supplement thereto, made by other adverse claim within 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 meaning 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.Uniform Commercial Code;
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxxxx, a director and Executive Vice President and Chief Operating Officer beneficially owns 2,742 outstanding Shares, (c) Xxxxx X. Xxxxxx, a director and General Counsel for of the Company, shall have furnished beneficially owns 10,600 outstanding Shares, (d) Xxxxxxx X. Xxxxxxxxx, a director of the Company, beneficially owns 9,800 outstanding Shares, (e) Xxxxxx X. Xxxxxxxxxx, a director of the Company, beneficially owns 13,650 outstanding Shares, and (f) Xx. Xxx X. Sterling, a director of the Company, beneficially owns 13,100 outstanding Shares. Pursuant to the Representatives his written opinionVoting Agreements, upon the terms and subject to the limitations and qualifications set forth in such opinionconditions therein, dated each Proxy Grantor has agreed, provided the Closing Date, in form and substance satisfactory to youMerger Agreement has not been terminated, to promptly after the effect that:
date of commencement of the Offer (but in all events not later than five business days thereafter) tender to Purchaser substantially all Shares beneficially owned by such Proxy Grantor. VOTING OF SHARES. Each Proxy Grantor has also agreed, provided the Merger Agreement has not been terminated, and subject to the receipt of proper notice and in the absence of a preliminary injunction or other final order by any court or other administrative or judicial authority barring such action, to vote the Shares beneficially owned by such Proxy Grantor in accordance with the Voting Agreement, including (i) The Company has such power in favor of approval of the Merger Agreement, the transactions contemplated by the Merger Agreement, and authority any actions required in furtherance thereof and hereof (corporate and other) to own its properties and conduct its business including the election of designees of Parent as described in directors of the Disclosure Package and the Final Prospectus;
Company); (ii) The Companyagainst any action or agreement that would result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement; and (iii) except as otherwise agreed to in writing in advance by Parent, against: (A) any Third Party Acquisition, (B) any change in a majority of the individuals who, as of the date specified in the Final ProspectusJuly 27, 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 qualification1999, 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 constitute the Company and its subsidiaries taken as a whole Board (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 contemplated by the Disclosure Package and the Final ProspectusMerger Agreement), there are no legal (C) any extraordinary corporate transaction, such as a merger, consolidation or governmental proceedings pending to which other business combination involving the Company or any of its subsidiaries and any third party, (D) a sale, lease, transfer or disposition of any assets of the Scheduled Subsidiaries is a party Company's or any of which its subsidiaries' business outside the ordinary course of business, (E) any property change in the present capitalization of the Company or any amendment of the Scheduled Subsidiaries Company's Certificate of Incorporation or bylaws, (F) any other material change in the Company's corporate structure or affecting its business, or (G) any other action which is intended, or could reasonably be expected, to impede, interfere with, delay, postpone or materially adversely affect the subject whichOffer, if determined adversely to the Company Merger 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 transactions contemplated by governmental authorities the Merger Agreement, or threatened the Voting Agreement. IRREVOCABLE PROXY. Each Proxy Grantor has also, provided the Merger Agreement has not been terminated, appointed Purchaser and certain designees of Purchaser, in their respective capacities as designees of Purchaser, as such Proxy Grantor's true and lawful irrevocable (until the Termination Date) proxy and attorney-in-fact to vote all outstanding Shares beneficially owned by others;
(vi) Neither such Proxy Grantor at any Stockholders' Meeting called for purposes of considering whether to approve 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 SecuritiesMerger Agreement, 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 Merger or any of the Scheduled Subsidiaries is a party or other transactions contemplated by which the Company Merger Agreement, or any of the Scheduled Subsidiaries is bound Third Party Acquisition, or to which any execute a written consent of the property or assets of the Company or any of the Scheduled Subsidiaries is subject, (2) result stockholders 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 lieu 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 misleadingmeeting.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxxxx, a director and Executive Vice President and General Counsel for Chief Operating Officer of the Company, shall have furnished beneficially owns 2,742 outstanding Shares, (c) Xxxxx X. Xxxxxx, a director and General Counsel of the Company, beneficially owns 10,600 outstanding Shares, (d) Xxxxxxx X. Xxxxxxxxx, a director of the Company, beneficially owns 9,800 outstanding Shares, (e) Xxxxxx X. Xxxxxxxxxx, a director of the Company, beneficially owns 13,650 outstanding Shares, and (f) Xx. Xxx X. Sterling, a director of the Company, beneficially owns 13,100 outstanding Shares. Pursuant to the Representatives his written opinionVoting Agreements, upon the terms and subject to the limitations and qualifications set forth in such opinionconditions therein, dated each Proxy Grantor has agreed, provided the Closing Date, in form and substance satisfactory to youMerger Agreement has not been terminated, to promptly tender to Purchaser all Shares beneficially owned by such Proxy Grantor, has agreed to vote such Shares in favor of approval of 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 Merger Agreement and the Final Prospectus;
transactions contemplated thereby and has granted an irrevocable proxy to Purchaser with respect to such Shares. Each holder (iiother than holders of Excluded Shares) The Companyof a certificate evidencing any Shares will, as from and after the effective time of the date specified in the Final ProspectusMerger, 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 cease to have any business so as rights with respect to require such qualificationShares, except the right to receive 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 Offer Price. From 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 after the consummation of the transactions herein Merger, each Excluded Share will be canceled and therein contemplated extinguished and cease to exist without any conversion thereof, and no payment will be made with respect thereto. DEUTSCHE BANK SECURITIES INC. ("DEUTSCHE BANK"), FINANCIAL ADVISOR TO THE COMPANY, HAS DELIVERED A WRITTEN OPINION TO THE BOARD, DATED JULY 26, 1999 (THE "DEUTSCHE BANK OPINION"), TO THE EFFECT THAT, AS OF THAT DATE, THE CONSIDERATION TO BE RECEIVED BY THE HOLDERS OF COMPANY COMMON STOCK PURSUANT TO THE MERGER AGREEMENT WAS FAIR FROM A FINANCIAL POINT OF VIEW. THE FULL TEXT OF THE DEUTSCHE BANK OPINION IS ATTACHED TO THE COMPANY'S SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 WHICH IS BEING MAILED TO STOCKHOLDERS OF THE COMPANY HEREWITH. STOCKHOLDERS ARE URGED TO READ SUCH OPINION CAREFULLY AND IN ITS ENTIRETY FOR ASSUMPTIONS MADE, MATTERS CONSIDERED AND LIMITS OF THE REVIEW OF DEUTSCHE BANK. The Company has informed Purchaser that as of July 21, 1999 there were 8,995,515 Shares issued and outstanding and outstanding options to purchase 1,499,557 additional Shares. The Minimum Condition should therefore be satisfied if at least approximately 5,247,536 Shares are validly tendered and 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 withdrawn prior to the Closing Expiration Date (up to 751,272 Shares will be tendered to Purchaser pursuant to the Voting Agreements). THE OFFER DOES NOT CONSTITUTE A SOLICITATION OF PROXIES FOR ANY MEETING OF THE COMPANY'S STOCKHOLDERS. ANY SUCH SOLICITATION WOULD BE MADE ONLY PURSUANT TO SEPARATE PROXY MATERIALS COMPLYING WITH THE REQUIREMENTS OF SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"). Tendering stockholders will not be obligated to pay brokerage commissions, solicitation fees or, subject to Instruction 6 of the Letter of Transmittal, stock transfer taxes on the purchase of Shares pursuant to the Offer. However, any tendering stockholder or other than payee who fails to complete and sign the financial statements Substitute Form W-9 that is included in the Letter of Transmittal may be subject to a required backup federal income tax withholding of 31% of the gross proceeds payable to such stockholder or other payee pursuant to the Offer. See "THE TENDER OFFER--5. Certain Federal Income Tax Consequences." Purchaser will pay all charges and related schedules thereinexpenses of Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), as to which Dealer Manager (in such counsel need express no opinioncapacity, the "Dealer Manager"), when they were filed BankBoston, N.A., as Depositary (in such capacity, the "Depositary"), and Xxxxxxxxx Shareholders Communications Inc., as Information Agent (in such capacity, the "Information Agent"), incurred in connection with the Commission complied as to form in all material respects with the requirements Offer. For a description of the Act fees and expenses to be paid by Purchaser, see "THE TENDER OFFER--20. Fees and Expenses." The information contained in this Offer to Purchase concerning the Company was supplied by the Company. None of Ocean Group, Parent, Purchaser, the Dealer Manager, the Depositary or the Exchange Act, as applicable, and Information Agent takes any responsibility for the rules and regulations of the Commission thereunder; and such counsel has no reason to believe that any completeness or accuracy of such documentsinformation. The information contained in this Offer to Purchase concerning the Offer, when they were so filedthe Merger, contained an untrue statement Ocean Group, Parent and Purchaser was supplied by Ocean Group, Parent and Purchaser. The Company takes no responsibility for the completeness or accuracy of a material fact or omitted such information. THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER. ALSO SEE "THE TENDER OFFER--21. MISCELLANEOUS" FOR INFORMATION REGARDING CERTAIN ADDITIONAL DOCUMENTS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") IN CONNECTION WITH THE OFFER. References herein to state a material fact required to be stated therein or necessary in order to make Ocean Group will, unless the statements thereincontext indicates otherwise, in the light include Ocean Group and all of the circumstances under which they were madeits subsidiaries, not misleading.including Parent and Purchaser. THE TENDER OFFER
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Xxxxx X. XxxxxxxxXxxxxx, Executive Vice President and General Counsel one of the Selling Stockholders, has delivered to LaSalle National Bank, N.A. ("Transfer Agent") certificates in negotiable form for the CompanySelling Stockholders Firm Securities to be sold by him for delivery under this Agreement, shall have furnished together with a letter of instruction relating to the Representatives his written opinion, subject transfer of such shares to the limitations Underwriters under this Agreement. Xxxxxxxx X. Xxxxxx, III, has also delivered to the Transfer Agent, certificates in negotiable form representing shares of Securities, certificates representing shares of Class B Common Stock to be converted into shares of Securities and qualifications set forth in such opinion, dated the Closing Dateoptions to be exercised for shares of Securities, 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 case in respect of the opinion in Selling Stockholders Firm Securities to be delivered by him to the Underwriters under this clause Agreement, together with a letter of instruction relating to the transfer of such shares to the Underwriters under this Agreement. Each Selling Stockholder agrees that the shares represented by the certificates referred to above, the options and the shares to be issued upon opinions of local counsel and in respect of matters of fact upon certificates of officers exercise of the Company; provided options are subject to the interests of the Underwriters hereunder, that such counsel shall state the arrangements made by the Selling Stockholders described above are to 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 entityextent irrevocable, and where such term applies, in good standing under that the laws of its jurisdiction of incorporation or organization; and all obligations of the issued shares Selling Stockholders hereunder shall not be terminated by operation of capital stock of each such Scheduled Subsidiary held law, whether 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 death of any obligation, covenant individual Selling Stockholder 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 occurrence of any of the terms or provisions ofother event, 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 a trust, by the death of any trustee or trustees or the termination of such trust. If any individual Selling Stockholder or any such trustee or trustees should die, or if any other such event should occur, or if any of such trusts should terminate, before the delivery of the Offered Securities hereunder, certificates for such Offered Securities shall be delivered by the Transfer Agent in accordance with the terms and conditions of this Agreement as if such death or other event or termination had not occurred, regardless of whether or not the Transfer Agent shall have received notice of such death or other event or termination. The Company will deliver the Company Firm Securities and the Transfer Agent will deliver the Selling Stockholders Firm Securities to the Representatives for the accounts of the Underwriters, against payment of the purchase price in Federal (1same day) and (3) above that would not individually funds by official bank check or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to the order of Genesee & Wyoming Inc. in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations case of the Company and its subsidiaries taken as a whole; and
(viii) The documents incorporated by reference Firm Securities, Xxxxxxxx X. Xxxxxx, III, in the Disclosure Package case of the Selling Stockholders Firm Securities to be sold by him and Xxxxx X. Xxxxxx in the case of the Selling Stockholders Firm Securities to be sold by him, at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New York time, on December 21, 2001, or at such other time not later than seven full business days thereafter as CSFBC, the Company and the Final Prospectus or any further amendment or supplement theretoSelling Stockholders determine, such time being herein referred to as the "First Closing Date". For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the First Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Offered Securities sold pursuant to the offering. The certificates for the Firm Securities so to be delivered will be in definitive form, in such denominations and registered in such names as CSFBC requests and will be made by available for checking and packaging at the Company above office of Xxxxxxx Xxxxxxx & Xxxxxxxx at least 24 hours prior to the First Closing Date. In addition, upon written notice from CSFBC given to the Company from time to time not more than 30 days subsequent to the date of the Prospectus, the Underwriters may purchase all or less than all of the Optional Securities at the purchase price per Security to be paid for the Firm Securities. The Company agrees to sell to the Underwriters the Optional Shares as described in greater detail below. The number of Optional Securities to be purchased shall be the number of Optional Securities specified in such notice and shall be purchased from the Company for the account of each Underwriter in the same proportion as the number of Firm Securities set forth opposite such Underwriter's name bears to the total number of Firm Securities (subject to adjustment by CSFBC to eliminate fractions) and may be purchased by the Underwriters only for the purpose of covering over-allotments made in connection with the sale of the Firm Securities. No Optional Securities shall be sold or delivered unless the Firm Securities previously have been, or simultaneously are, sold and delivered. The right to purchase the Optional Securities or any portion thereof may be exercised from time to time and to the extent not previously exercised may be surrendered and terminated at any time upon notice by CSFBC to the Company. Each time for the delivery of and payment for the Optional Securities, being herein referred to as an "Optional Closing Date", which may be the First Closing Date (other than the financial statements First Closing Date and related schedules thereineach Optional Closing Date, if any, being sometimes referred to as to which such counsel need express no opiniona "Closing Date"), when they were filed with shall be determined by CSFBC but shall be not later than five full business days after written notice of election to purchase Optional Securities is given. The Company will deliver the Commission complied as Optional Securities being purchased on each Optional Closing Date to form in all material respects with the requirements Representatives for the accounts of the Act or the Exchange Actseveral Underwriters, as applicable, and the rules and regulations against payment of the Commission thereunder; purchase price therefor in Federal (same day) funds by official bank check or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to the order of the Company at the above office of Xxxxxxx Xxxxxxx & Xxxxxxxx. The certificates for the Optional Securities being purchased on each Optional Closing Date will be in definitive form, in such denominations and registered in such counsel has no reason names as CSFBC requests upon reasonable notice prior to believe that any such Optional Closing Date and will be made available for checking and packaging at the above office of Xxxxxxx Xxxxxxx & Xxxxxxxx at a reasonable time in advance 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 misleadingOptional Closing Date.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxx and each officer of the Company has agreed in writing that such person will not, Executive Vice President and General Counsel for a period of 30 months from the Companydate that the Registration Statement is declared effective by the Commission (the "Lock-up Period"), shall have furnished offer to sell, contract to sell, or otherwise sell, dispose of, loan, or grant any rights with respect to (collectively, a "Disposition") any shares of Common Stock, any options or warrants to purchase any shares of Common Stock or any securities convertible into, exercisable for or exchangeable for shares of Common Stock (collectively, "Securities") now owned or hereafter acquired directly by such person or any affiliate or with respect to which such person has or hereafter acquires the Representatives his written opinionpower of Disposition, 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:
otherwise than (i) as a bona fide gift or gifts, provided the donee or donees thereof agree in writing to be bound by this restriction, (ii) as a distribution to partners or shareholders of such person, provided that the distributees thereof agree in writing to be bound by the terms of this restriction, (iii) with respect to up to 85% of such Securities, in connection with pledges to secure obligations for borrowed money, or (iv) with the prior written consent of Xxxxxxxxx, Xxxxxxxx & Company LLC; provided, that after the expiration of the 18-month period following the effective date of the Registration Statement, the Disposition of up to 50% of the Securities held by such persons shall be permitted. The foregoing restriction has been expressly agreed to preclude the holder of the Securities from engaging in any hedging or other transaction which is designed to or reasonably expected to lead to or result in a Disposition of Securities during the Lock-up Period, even if such Securities would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include, without limitation, any short sale (whether or not against the box) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any Securities or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Securities. Furthermore, such person has also agreed and consented to the entry of stop transfer instructions with the Company's transfer agent against the transfer of the Securities held by such person except in compliance with this restriction. The Company has such power and authority (corporate and other) provided 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 counsel for the transaction Underwriters a complete and accurate list 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 all securityholders of the Company and its subsidiaries taken as a whole (such the number and type of securities held by each securityholder. The Company has provided to counsel being entitled to rely in respect for the Underwriters true, accurate and complete copies 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 agreements pursuant to which Xx. Xxxxx and the Final Prospectus) are owned directly or indirectly by the Company, 's officers have agreed to such counsel’s knowledge, free or similar restrictions (the "Lock-up Agreements") presently in effect or effected hereby. The Company hereby represents 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 warrants 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 will not release any of its properties may be bound except for such defaults that would not individually officers or in Xx. Xxxxx from any Lock-up Agreements currently existing or hereafter effected without the aggregate have a material adverse effect on the current or future consolidated financial positionprior written consent of Xxxxxxxxx, stockholders’ equity or results of operations of the Xxxxxxxx & 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 misleadingLLC.
Appears in 1 contract
Xxxxx X. Xxxxxxxx, Executive Vice President Xxxxx may continue to serve as a director of the Company and General Counsel for (y) the Company, Board of Directors shall have furnished at least three directors who are directors on the date hereof and who are neither officers of the Company nor designees, stockholders, affiliates or associates (within the meaning of the Federal securities laws) of Parent (such directors, the "Independent Directors"); provided further, that if at any time or from time to -------- ------- time fewer than three Independent Directors remain, the other directors shall elect to the Representatives his written opinionBoard of Directors such number of persons who shall be neither officers of the Company nor designees, subject shareholders, affiliates or associates of Parent so that the total of such persons and remaining Independent Directors serving on the Board of Directors is at least three. Any such person elected to the limitations and qualifications set forth in such opinion, dated the Closing Date, in form and substance satisfactory to you, Board of Directors pursuant to the effect that:
second proviso of the preceding sentence shall be deemed to be an Independent Director for purposes of this Agreement. Subject to applicable law, the Company shall promptly take all action necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 mailed to stockholders promptly after the commencement of the Offer (or an amendment thereof or an information statement pursuant to Rule 14f-1 if Parent has not theretofore designated directors) such information with respect to the Company and its officers and directors as is required under Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Parent will supply the Company any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Parent constitute a majority of the Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) The amend or terminate on behalf of the Company has such power and authority (corporate and other) to own its properties and conduct its business as described in this Agreement, the Disclosure Package and Company Stock Option Agreement or the Final Prospectus;
(ii) The CompanyTermination Agreement, dated as of the date specified in hereof, among the Final ProspectusCompany, has an authorized capitalization as set forth under Xxxxxx and Xxxxxx X. Xxxxxx (ii) exercise or waive any of the caption “Capitalization” in the Final Prospectus;
Company's rights or remedies hereunder or thereunder, (iii) The Company has been duly qualified as a foreign corporation extend the time for the transaction performance of business and is in good standing under the laws of each other jurisdiction in which it owns Parent's or leases properties Purchaser's obligations hereunder 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 thereunder 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 take any 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 action required to be stated therein taken by the Board of Directors hereunder or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingthereunder.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxx, Executive Vice President B. Xxxxx Xxxx and General Counsel Xxx XxXxxx (such members, the “Crimson Directors”). Until the first anniversary of the Effective Time, the Board of Directors shall take all requisite action to cause the Board of Directors to be comprised of the five Contango Directors and the three Crimson Directors; provided, however, that, during such period, at least three of the Contango Directors and at least two of the Crimson Directors shall be independent for purposes of the Companyrules of the New York Stock Exchange. If, shall have furnished at any time until the first anniversary of the Effective Time, the number of Crimson Directors and Contango Directors serving, or that would be serving following the next stockholders’ meeting at which directors are to be elected, as directors of the Representatives his written opinionCorporation, would not be as set forth above, then, subject to the limitations fiduciary duties of the directors of the Corporation, the Board of Directors (and qualifications set forth in any nominating committee thereof) shall appoint, and nominate for election at the next stockholders’ meeting at which directors are to be elected, such opinionperson or persons as may be requested by the remaining Crimson Directors (if the number of Crimson Directors is, dated or would otherwise become, less than three) (and such person or persons, “Crimson Directors”) or by the Closing Dateremaining Contango Directors (if the number of Contango Directors is, in form or would otherwise become, less than five) (and substance satisfactory to yousuch person or persons, to the effect that:
(i) The Company has such power and authority (corporate and other“Contango Directors”) to own its properties ensure that there will be five Contango Directors and conduct its business as described in three Crimson Directors. For purposes of these Bylaws, the Disclosure Package “Effective Time” means the date and the Final Prospectus;
(ii) The Company, as time of the date specified in filing with 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 Secretary 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 State of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect State 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 Delaware of the Certificate of Incorporation or ByMerger consummating the merger of Contango Acquisition, Inc., a Delaware corporation and wholly-laws owned subsidiary of the Company or (3) result in any violation Corporation, with and into Crimson, pursuant to the terms and conditions of the provisions Agreement and Plan of any statute or any orderMerger dated as of April [—], rule or regulation of any court or governmental agency or body having jurisdiction over 2013, among the Company or any of the Scheduled Subsidiaries or any of their properties except in the case of clauses (1) Corporation, Crimson and (3) above that would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial positionContango Acquisition, 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.Inc.
Appears in 1 contract
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, Xxxxx shall have furnished to the Representatives his written opinion, subject to the limitations and qualifications rights set forth in such opinion, dated herein to nominate all of the Closing Date, in form and substance satisfactory Company Directors (as the number of Company Directors shall be reduced pursuant to you, to Section 2.1(b)) only so long as he maintains Beneficial Ownership of at least 50% of 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, Common Stock Equivalents held by him 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 Xxxxx Employment Agreement has not been terminated by the Company for Cause (as defined therein); provided, however, that so long as Xxxxx X. Xxxxx is the Chief Executive Officer of the Company he shall serve as a Director, (ii) the Xxxxxx Holders and the Northwood Holders each shall have the rights set forth herein to nominate the Series A, B and E Preferred Directors, and such Series A, B and E Preferred Directors shall have the right to nominate members of the Committees described in Section 2.3 hereof, only so long as the Xxxxxx Holders or the Northwood Holders, as the case may be, maintain Beneficial Ownership in the aggregate of at least 50% of the Common Stock Equivalents (excluding Warrant Shares) initially acquired by it pursuant to the First Series A Stock Purchase Agreement and the Second Series A Stock Purchase Agreement, and (iii) the holders of a Majority of the Shares of Series C and D Preferred Stock shall have the rights set forth herein to nominate the Series C and D Preferred Directors and to designate the Chairman of the Board, and the Series C and D Preferred Directors shall have the right to nominate members of the Committees described in Section 2.3 hereof, only so long as the Qualifying Series C and D Beneficial Holders maintain Beneficial Ownership of at least 20% of the Series C and D Adjusted Fully Diluted Capitalization. If any of Xxxxx X. Xxxxx, the Xxxxxx Holders, the Northwood Holders or the Series C and D Holders loses its rights to designate Directors, the Directors which such Securityholder had been entitled to designate shall promptly resign and the vacancies created by such resignations shall be filled by the stockholders of the Company voting at a special or general meeting or by written consent in lieu of any such meeting at any time after the consummation of the transactions herein and therein contemplated will not (1) conflict with or result transaction 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 such Person lost its rights to designate Directors. If any Directors or Committee members who are required to resign such positions pursuant to the property preceding sentences fail to promptly tender their written resignations, the stockholders and the remaining Directors shall promptly take such steps as may be necessary or assets appropriate under the Company's bylaws and applicable law in order to remove such Directors and/or Committee members. The Directors designated by the stockholders of the Company or shall appoint successor committee members to fill any vacancies then existing as a result of the Scheduled Subsidiaries is subject, (2) result in any violation resignations 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 Directors referred to 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 two preceding sentences (other than any vacancy on the financial statements and related schedules therein, as Executive Committee created by the failure of Xxxxx X. Xxxxx to serve thereon 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 shall be stated therein or necessary in order to make the statements therein, handled in the light of the circumstances under which they were made, not misleadingmanner provided in Section 2.3(a)).
Appears in 1 contract
Samples: Stockholders' Agreement (Vantas Inc)
Xxxxx X. XxxxxxxxXxxx (“Executive”), Executive Vice President for himself and General Counsel his family, heirs, executors, administrators, legal representatives and their respective successors and assigns, in exchange for the consideration received under the Employment Agreement to which this release is attached as Exhibit A (the “Employment Agreement”), does hereby release and forever discharge WCI Communities Management, LLC, a Delaware limited liability company (the “Employer”), its parent WCI Communities, Inc., a Delaware corporation (“Parent”), WCI Communities, LLC, a Delaware limited liability company (collectively with the Employer and Parent, the “Company”) its subsidiaries, affiliated companies, successors and assigns, and its current or former directors, officers or shareholders in such capacities (collectively with the Company, shall the “Released Parties”) from any and all actions, causes of action, suits, controversies, claims and demands whatsoever, for or by reason of any matter, cause or thing whatsoever, whether known or unknown including, but not limited to, all claims under any applicable laws arising under or in connection with Executive’s employment or termination thereof, whether for tort, breach of express or implied employment contract, wrongful discharge, intentional infliction of emotional distress, or defamation or injuries incurred on the job or incurred as a result of loss of employment. Executive acknowledges that the Company encouraged him to consult with an attorney of his choosing, and through this General Release of Claims encourages him to consult with his attorney with respect to possible claims under the Age Discrimination in Employment Act (“ADEA”) and that he understands that the ADEA is a Federal statute that, among other things, prohibits discrimination on the basis of age in employment and employee benefits and benefit plans. Without limiting the generality of the release provided above, Executive expressly waives any and all claims under ADEA that he may 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 hereof. Executive further understands that by signing this General Release of Claims he is in the Final Prospectusfact waiving, has an authorized capitalization as set forth releasing and forever giving up any claim under the caption “Capitalization” ADEA as well as all other laws within the scope of this paragraph 1 that may have existed on or prior to the date hereof. Notwithstanding anything in this paragraph 1 to the Final Prospectus;
contrary, this General Release of Claims shall not apply to (iiii) The Company has been duly qualified any rights to receive any payments or benefits due after the date this General Release of Claims is executed to which Executive is entitled under COBRA, the Employment Agreement or any other compensation or employee benefit plans in which Executive is eligible to participate at the time of execution of this General Release of Claims, (ii) any rights or claims that may arise as a foreign corporation for result of events occurring after the transaction date this General Release of business Claims is executed, any indemnification 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 advancement rights Executive may 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 former employee, officer 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 director of the Company or such Scheduled Subsidiaries; provided that such counsel shall state that he believes that both you its subsidiaries or affiliated companies including, without limitation, any rights arising pursuant to the articles of incorporation, bylaws and he are justified in relying upon such opinions and certificates);
(v) To the best of such counsel’s knowledge and any 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 organizational documents of the Company or any of its subsidiaries, the Scheduled Subsidiaries is Indemnification Agreement between the subject whichCompany and Executive dated as of November 5, if determined adversely 2013, as may be amended from time to time or any other similar arrangement or agreement (iv) any claims for benefits under any directors’ and officers’ liability policy maintained by the Company or its subsidiaries or affiliated companies in accordance with the terms of such policy, and (v) any rights as a holder 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 securities 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;
(viclauses (i) 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;
through (vii) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securitiesv), 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“Reserved Claims”), 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 1 contract
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, Xxxxx shall have furnished to the Representatives his written opinion, subject to the limitations and qualifications rights set forth in such opinion, dated herein to nominate all of the Closing Date, in form and substance satisfactory Company Directors (as the number of Company Directors shall be reduced pursuant to you, to Section 2.1(b)) only so long as he maintains Beneficial Ownership of at least 50% of 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, Common Stock Equivalents held by him 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 Xxxxx Employment Agreement has not been terminated by the Company for Cause (as defined therein); provided, however, that so long as Xxxxx X. Xxxxx is the -------- ------- Chief Executive Officer of the Company he shall serve as a Director, (ii) the Xxxxxx Holders and the Northwood Holders each shall have the rights set forth herein to nominate the Series A and Series B Preferred Directors, and Series A and Series B Preferred Directors shall have the right to nominate members of the Committees described in Section 2.3 hereof, only so long as the Xxxxxx Holders or the Northwood Holders, as the case may be, maintain Beneficial Ownership in the aggregate of at least 50% of the Common Stock Equivalents (excluding Warrant Shares) initially acquired by it pursuant to the First Series A Stock Purchase Agreement and the Second Series A Stock Purchase Agreement, and (iii) the holders of a Majority of the Shares of Series C Preferred Stock shall have the rights set forth herein to nominate the Series C Preferred Directors and to designate the Chairman of the Board, and the Series C Preferred Directors shall have the right to nominate members of the Committees described in Section 2.3 hereof, only so long as the Qualifying Series C Beneficial Holders maintain Beneficial Ownership of at least 20% of the Series C Adjusted Fully Diluted Capitalization. If any of Xxxxx X. Xxxxx, the Xxxxxx Holders, the Northwood Holders or the Series C Holders loses its rights to designate Directors, the Directors which such Securityholder was entitled to designate shall promptly resign and the vacancies created by such resignations shall be filled by the stockholders of the Company voting at a meeting or by written consent at any time after the consummation of the transactions herein and therein contemplated will not (1) conflict with or result transaction 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 such Person lost its rights to designate Directors. If any Directors or Committee members who are required to resign such positions pursuant to the property preceding sentences fail to promptly tender their written resignations, the stockholders and the remaining Directors shall promptly take such steps as may be necessary or assets appropriate under the Company's bylaws and applicable law in order to remove such Directors and/or Committee members. The Directors designated by the stockholders of the Company or shall appoint successor committee members to fill any vacancies then existing as a result of the Scheduled Subsidiaries is subject, (2) result in any violation resignations 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 Directors referred to 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 two preceding sentences (other than any vacancy on the financial statements and related schedules therein, as Executive Committee created by the failure of Xxxxx X. Xxxxx to serve thereon 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 shall be stated therein or necessary in order to make the statements therein, handled in the light of the circumstances under which they were made, not misleadingmanner provided in Section 2.3(a)).
Appears in 1 contract
Samples: Stockholders' Agreement (Reckson Services Industries Inc)
Xxxxx X. XxxxxxxxXxxxxx Xxxxxxx X. XxXxxxxx Xxxxxx Xxxxxx, Executive Vice President MD Xxxx Xxxxxxxxx Xxxxxx X. Xxxxxxxxxxx Ph.D. Xxxxxxx X. Xxxxxxx Size: 5,000,000 shares of common stock Over-allotment option: 750,000 additional shares of common stock Public offering price: $7.00 per share Net proceeds (excluding the over-allotment): $33,000,000 (after deducting the underwriters’ discounts and General Counsel for commissions and estimated offering expenses payable by the Company) Xxxxxxxxxxx & Co. Inc. c/o Oppenheimer & Co. Inc. 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Public Offering of ImmunoGen, Inc. Ladies and Gentlemen: The undersigned, a holder of common stock, par value $.01 (“Common Stock”), or rights to acquire Common Stock, of ImmunoGen, Inc. (the “Company”) understands that you, as Representative of the Underwriter(s), propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company, shall have furnished providing for the public offering (the “Public Offering”) by the Underwriter(s) named in Schedule I to the Representatives his written opinionUnderwriting Agreement (the “Underwriter(s)”), 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 shares 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 Common 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 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 SubsidiariesSecurities”) ). Capitalized terms used herein and not otherwise defined shall 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 meanings set forth in the Disclosure Package Underwriting Agreement. In consideration of the agreement by the Underwriter(s) to enter into the Underwriting Agreement and to proceed with the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby agrees for the benefit of the Company, you and the Final Underwriter(s) that, without the prior written consent of Xxxxxxxxxxx & Co. Inc. on behalf of the Underwriter(s), the undersigned will not, during the period ending 90 days after the date of the final prospectus (the “Lock-Up Period”) relating to the Public Offering (the “Prospectus”), there are no legal directly or governmental proceedings pending indirectly (1) offer, pledge, assign, sell, contract to which sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock owned either of record or beneficially (as defined in the Company Securities Exchange Act of 1934, as amended (the “Exchange Act”)) by the undersigned on the date hereof or hereafter acquired or (2) enter into any swap or other agreement that transfers, in whole or in part, any of the Scheduled Subsidiaries is a party or economic consequences of which any property ownership of the Company Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; or publicly announce an intention to do any of the Scheduled Subsidiaries is foregoing. In addition, the subject whichundersigned agrees that, if determined adversely without the prior written consent of Xxxxxxxxxxx & Co. Inc. on behalf of the Underwriter(s), it will not, during the Lock-Up Period, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The foregoing shall not apply to (i) transfers of Common Stock as a bona fide gift or gifts, (ii) transfers to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned; provided that any such transfer shall not involve a disposition for value, or (iii) transfers by will or intestate succession; provided, however, that (A) each donee, transferee or distribute under clause (i), (ii) or (iii) shall execute and deliver a letter substantially in the form hereof agreeing to be bound by the terms hereof and (B) neither the undersigned nor any other party to the Company applicable transaction under clause (i), (ii) or any (iii), shall be required to file, or voluntarily file, a report under Section 16(a) of the Scheduled SubsidiariesExchange Act, would individually or in other than a filing on Form 5 made after the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations expiration of the Company and its subsidiaries taken as a whole; andLock-Up Period, to (iv) 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 to be sold pursuant to the Prospectus, (v) the establishment or modification of a trading plan that complies with Rule 10b5-1 promulgated under the Exchange Act; provided that no sales are made pursuant to such trading plan during the Lock-Up Period and (vi) the compliance sale of Common Stock or other securities by the Company with all or on behalf 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 undersigned pursuant to 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 trading plan established prior to the Closing Date date of this Letter Agreement that complies with Rule 10b5-1 promulgated under the Exchange Act; provided that no modification is made to the formula, algorithm or computer program with respect to such trading plan during the Lock-Up Period. For purposes of this Letter Agreement, the term “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. Notwithstanding the foregoing, if (x) during the last 17 days of the Lock-Up Period the Company issues an earnings release or material news or a material event relating to the Company occurs; or (y) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period; the restrictions imposed in this Letter Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; provided, however, that this sentence shall not apply if the research published or distributed on the Company is compliant under Rule 139 of the Securities Act of 1933, as amended, and the Company’s securities are actively traded as defined in Rule 101(c)(1) of Regulation M of the Exchange Act. In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement. The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned. The undersigned understands that, if the Underwriting Agreement does not become effective by July 15, 2009, or if the Underwriting Agreement (other than the financial statements provisions thereof which survive termination) shall terminate or be terminated prior to payment for and related schedules thereindelivery of the Common Stock to be sold thereunder, as to which such counsel need express no opinion)the undersigned shall be released form all obligations under this Letter Agreement. The undersigned, when they were filed whether or not participating in the Offering, understands that the Underwriter is entering into the Underwriting Agreement and proceeding with the Commission complied as to form Public Offering in all material respects reliance upon this Letter Agreement. This lock-up agreement shall be governed by and construed in accordance with the requirements laws of the Act or State of New York, without regard to the Exchange Actconflict of laws principles thereof. Very truly yours, 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.By: Name:
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