Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to you his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Time 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 Offering Circular; (ii) The Company, as of the date specified in the Offering Circular, has an authorized capitalization as set forth under the caption “Capitalization” in the Offering 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, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates); (iv) Those subsidiaries listed on Schedule 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 set forth in the Offering Circular) are owned directly or indirectly by the Company, 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 they believe that both you and 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 Offering 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 Offering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the 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 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; (x) 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 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; (xi) The documents incorporated by reference in the Offering Circular or any further amendment or supplement thereto, made by the Company prior to 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, 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 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 you his written opinion, subject to the limitations and qualifications set forth in such opinion"VOTING AGREEMENT"), dated the Time 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 Offering Circular;
(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 Offering CircularVoting 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 Offering Circular Granting Stockholder's name, place and stead, to vote and otherwise act (by written consent or otherwise) with respect to all of the issued shares Company Shares now owned of capital stock record or Beneficially Owned by the Granting Stockholder and of which the Granting Stockholder may hereafter acquire record or Beneficial Ownership, and any other securities, if any (the "OTHER SECURITIES"), which the Granting Stockholder is entitled to vote at any meeting of the stockholders of the Company have been duly (whether annual or special and validly authorized and issued and are fully paid and non-assessable;
(iiiwhether or not an adjourned or postponed meeting) The Company has been duly qualified as a foreign corporation for the transaction or consent in lieu 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, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule II hereto (the “Scheduled Subsidiaries”) have each been duly incorporated meeting 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 set forth in the Offering Circular) are owned directly or indirectly by the Company, 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 they believe that both you and 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 Offering 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 Offering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the 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 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;
(x) 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 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;
(xi) The documents incorporated by reference in the Offering Circular or any further amendment or supplement thereto, made by the Company prior to 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, 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 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.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 you his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Time of Delivery, 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 Offering Circular;
Section 3.1, (ii) The Company, as the determination of the date specified in the Offering CircularEarnout Amount pursuant to Section 3.2, has an authorized capitalization as set forth under the caption “Capitalization” in the Offering 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 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, or is subject to no material liability or disability by reason of the failure to shall be so qualified in any such jurisdiction (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 CompanyHolders, provided that 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 they believe that both you and they are justified in relying upon notify Parent of the identity of such opinions and certificates);
(iv) Those subsidiaries listed on Schedule II hereto (successor. Any such successor shall become one of the “Scheduled Subsidiaries”Shareholders’ Agents” for purposes of (1) the determination of Final Working Capital pursuant to Section 3.1, (2) the determination of the Earnout Amount pursuant to Section 3.2, (3) 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 each been duly incorporated against Parent or organized and each is validly existing the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as an entity, and where such term applies, Shareholder’s Agents while acting in good standing under faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the laws of its jurisdiction of incorporation Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or organization; and all expense incurred without gross negligence, bad faith or willful misconduct on the part of the issued shares of capital stock of each such Scheduled Subsidiary held by the Company have been duly Shareholders’ Agents and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares and as otherwise set forth in the Offering Circular) are owned directly or indirectly by the Company, 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 they believe that both you and 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 Offering 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 Offering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) No consent, approval, authorization, order, registration or qualification arising out 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 acceptance or administration of the Securities Shareholders’ Agents’ duties hereunder, including the reasonable fees and such consentsexpenses of any legal counsel or other professional retained by the Shareholders’ Agents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase acceptance and distribution administration 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 which 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;
(x) 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 which would not individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholdersAgents’ equity or results of operations of the Company and its subsidiaries taken as a whole;
(xi) The documents incorporated by reference in the Offering Circular or any further amendment or supplement thereto, made by the Company prior to 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, 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 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 Actduties hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Arthrocare Corp), Merger Agreement (Arthrocare Corp)
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, Xxxxx shall have furnished to you his written opinion, subject to the limitations and qualifications rights set forth in such opinion, dated herein to nominate all of the Time Company Directors (as the number of Delivery, in form and substance satisfactory 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 Offering Circular;
(ii) The Company, Common Stock Equivalents held by him as of the date specified in the Offering Circular, has an authorized capitalization as set forth under the caption “Capitalization” in the Offering 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, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule 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 set forth in the Offering Circular) are owned directly or indirectly by the Company, 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 they believe that both you and 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 Offering 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 Offering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the 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 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;
(x) 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 Xxxxx Employment Agreement has 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 been terminated by the Company or any of for Cause (as defined therein); provided, however, that so long as Xxxxx X. Xxxxx is 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 -------- ------- Chief Executive Officer of the Company or any 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 Scheduled Subsidiaries is subjectCommittees described in Section 2.3 hereof, (2) result in any violation of only so long as the provisions of Xxxxxx Holders or 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 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;
(xi) The documents incorporated by reference in the Offering Circular or any further amendment or supplement thereto, made by the Company prior to 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 CommissionNorthwood Holders, as the case may be, complied as to form maintain Beneficial Ownership in all material respects with the requirements aggregate of at least 50% of the Act or Common Stock Equivalents (excluding Warrant Shares) initially acquired by it pursuant to the Exchange ActFirst Series A Stock Purchase Agreement and the Second Series A Stock Purchase Agreement, as applicableand (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 rules and regulations Series C Preferred Directors shall have the right to nominate members of the Commission thereunder; and they have no reason to believe that 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 documents, when they were so filed, contained an untrue statement 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 material fact meeting or omitted by written consent at any time after the consummation of the transaction in which any such Person lost its rights to state a material fact designate Directors. If any Directors or Committee members who are required to resign such positions pursuant to the preceding sentences fail to promptly tender their written resignations, the stockholders and the remaining Directors shall promptly take such steps as may be stated therein necessary or necessary appropriate under the Company's bylaws and applicable law in order to make remove such Directors and/or Committee members. The Directors designated by the statements therein, stockholders of the Company shall appoint successor committee members to fill any vacancies then existing as a result of the resignations of the Directors referred to in the light of two preceding sentences (other than any vacancy on 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 Executive Committee created by the Purchasers failure of Xxxxx X. Xxxxx to serve thereon which shall be handled 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 provided 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 ActSection 2.3(a)).
Appears in 1 contract
Samples: Stockholders' Agreement (Reckson Services Industries Inc)
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 you his written opinionbe elected, as directors of the Corporation, would not be as set forth above, then, subject to the limitations and qualifications set forth in such opinion, dated the Time 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 Offering Circular;
(ii) The Company, as fiduciary duties of the date specified in the Offering Circular, has an authorized capitalization as set forth under the caption “Capitalization” in the Offering Circular and all directors 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 qualificationCorporation, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule 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 set forth in the Offering Circular) are owned directly or indirectly by the Company, 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 they believe that both you and 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 Offering 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 Offering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the 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 (and any nominating committee thereof) shall appoint, and nominate for election at the next stockholders’ meeting at which directors are to be elected, such person or persons as may be requested by the remaining Crimson Directors (if the number of Crimson Directors is, or would otherwise become, less than three) (and such person or persons, “Crimson Directors”) or by the remaining Contango Directors (if the number of Contango Directors is, or would otherwise become, less than five) (and such person or persons, “Contango Directors”) to ensure that there will be five Contango Directors and three Crimson Directors. For purposes of these Bylaws, the “Effective Time” means the date and time of the Company approving filing with the issuance Secretary of State of the Securities have reserved the Conversion Shares for issuance;
(ix) Neither the Company nor any State 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 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;
(x) 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 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 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;
(xi) The documents incorporated by reference in the Offering Circular or any further amendment or supplement thereto, made by the Company prior to 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, 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 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 Plan of Merger dated as of April [—], 2013, among the Indenture Corporation, Crimson and the application of the net proceeds from such sale as described in the Offering Circular under the caption “Use of Proceeds”Contango Acquisition, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act.Inc.
Appears in 1 contract
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 to you his written opinion, subject together with a letter of instruction relating to the limitations transfer of such shares to the 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 Time options to be exercised for shares of DeliverySecurities, 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 Offering Circular;
(ii) The Company, as of the date specified in the Offering Circular, has an authorized capitalization as set forth under the caption “Capitalization” in the Offering 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, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction (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 Companyoptions are subject to the interests of the Underwriters hereunder, provided that such counsel shall state the arrangements made by the Selling Stockholders described above are to that they believe that both you and they are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule II 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 issueddeath of any individual Selling Stockholder or the occurrence of any other event, are fully paid and non-assessable and (except for directors’ qualifying shares and as otherwise set forth or in the Offering Circular) are owned directly or indirectly case of a trust, by the Companydeath of any trustee or trustees or the termination of such trust. If any individual Selling Stockholder or any such trustee or trustees should die, free and clear or if any other such event should occur, or if any of all lienssuch trusts should terminate, encumbrances, equities or claims (such counsel being entitled to rely in respect before the delivery of the opinion Offered Securities hereunder, certificates for such Offered Securities shall be delivered by the Transfer Agent in accordance with the terms and conditions of this clause upon opinions Agreement as if such death or other event or termination had not occurred, regardless of local counsel 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 respect 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 matters of fact upon certificates of officers Genesee & Wyoming Inc. in the case of the Company or such Scheduled SubsidiariesFirm Securities, provided that such counsel shall state that they believe that both you and 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 themXxxxxxxx X. Xxxxxx, III, in each the case free of the Selling Stockholders Firm Securities to be sold by him and clear of all liens, encumbrances and defects except such as are described Xxxxx X. Xxxxxx 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 case of the Company and its subsidiaries taken as a whole and do not interfere with the use made and proposed Selling Stockholders Firm Securities to be made 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 property by other time not later than seven full business days thereafter as CSFBC, the Company and the Scheduled Subsidiaries; Selling 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 any real property 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 buildings held under lease registered in such names as CSFBC requests and will be made available for checking and packaging at the 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 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 Underwriters only 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 Offering 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 Offering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the 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 covering over-allotments made in connection with the shares of Stock issuable upon conversion 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 such consents, approvals, authorizations, registrations delivered. The right to purchase the Optional Securities or qualifications as any portion thereof may be required under state securities or Blue Sky laws in connection with 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 (the First Closing Date and each Optional Closing Date, if any, being sometimes referred to as a "Closing Date"), 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 Optional Securities being purchased on each Optional Closing Date to the Representatives for the accounts of the several Underwriters, against payment of the purchase and distribution of 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 Securities by the Purchasers;
(viii) The resolutions of the Board of Directors order of the Company approving at the issuance above office of Xxxxxxx Xxxxxxx & Xxxxxxxx. The certificates for the Optional Securities have reserved the Conversion Shares for issuance;
(ix) Neither the Company nor any of the Scheduled Subsidiaries is being purchased on each Optional Closing Date will be in violation of its Certificate of Incorporation or By-laws or definitive form, in default such denominations and registered 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 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 names as a whole;
(x) 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 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;
(xi) The documents incorporated by reference in the Offering Circular or any further amendment or supplement thereto, made by the Company CSFBC requests upon reasonable notice prior to such Time Optional Closing Date and will be made available for checking and packaging at the above office 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, as the case may be, complied as to form Xxxxxxx Xxxxxxx & Xxxxxxxx at a reasonable time 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 they have no reason to believe that any 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 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 ActOptional Closing Date.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxxxxxx and the Guarantor in the aggregate shall cease to own, Executive Vice President directly or indirectly, at least 51% of the issued and General Counsel outstanding common stock of Debtor entitled to vote for the Company, shall have furnished to you his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Time election of Delivery, in form and substance satisfactory to you, to the effect that:directors of Debtor;
(i) The Company has such power any proceeding (judicial or administrative) shall be commenced against Debtor, any Subsidiary or the Guarantor, or with respect to any assets of Debtor, any Subsidiary or the Guarantor which could reasonably be expected to have a material and authority adverse effect on the assets, condition or prospects of Debtor, any Subsidiary or the Guarantor; or final judgment(s) and/or settlement(s) in an aggregate amount in excess of (corporate and otheri) to own its properties and conduct its business as described in the Offering Circular;
case of the Guarantor, XXXXXX-XXXX XXXXXXX XXX XX/000 XXXXXX XXXXXX DOLLARS ($25,000,000.00), or (ii) The Companyin the case of the Debtor or any Subsidiary, XXX XXXXXXX XXX XX/000 XXXXXX XXXXXX DOLLARS ($1,000,000), in each case in excess of insurance for which the insurer has confirmed coverage in writing, a copy of which writing has been furnished to Secured Party, shall be entered or agreed to in any suit or action; . . .
(l) any bankruptcy, insolvency, reorganization, arrangement, readjustment, liquidation, dissolution, or similar proceeding, domestic or foreign, is instituted by or against Debtor, any Subsidiary or the Guarantor and in the case of an involuntary proceeding is not dismissed within 60 days; or Debtor, any Subsidiary or the Guarantor shall take any steps toward, or to authorize, such a proceeding; or
(m) Debtor, any Subsidiary or any Guarantor shall become insolvent, generally shall fail or be unable to pay its debts as they mature, shall admit in writing its inability to pay its debts as they mature, shall make a general assignment for the benefit of its creditors, shall enter into any composition or similar agreement, or shall suspend the transaction of all or a substantial portion of its usual business."
2.3. Section 9(e) of the Security Agreement. Section 9(e) of the Security Agreement is hereby amended as of the date specified in hereof by adding the Offering Circularfollowing immediately after the semicolon but before the "or" appearing therein: "or the senior unsecured debt rating of Guarantor shall be less than BBB by Standard & Poor's, has an authorized capitalization as set forth under the caption “Capitalization” in the Offering Circular and all a division of McGraw Hill Company, Inc. or Baa by Xxxxx'x Investors Services, Inc.;"
2.4. Section 9(j) of the issued shares of capital stock Security Agreement. Section 9(j) 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 Security Agreement is hereby amended 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, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of date hereof by deleting everything after 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 they believe that both you and they are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule 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 set forth in the Offering Circular) are owned directly or indirectly by the Company, 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 they believe that both you and 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 phrase "with the use made terms hereof" appearing therein and proposed to be made of such property by substituting 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 Offering Circular, there are no legal or governmental proceedings pending to which the Company following therefor: "or any notice of the Scheduled Subsidiaries is a party or federal tax lien against Debtor in excess 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 Offering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) No consent, approval, authorization, order, registration or qualification of or $1,000,000 shall be filed 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 public recorder and such consentslien is not vacated, approvalsdischarged, authorizations, registrations stayed or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution bonded over for a period 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 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;
(x) 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 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;
(xi) The documents incorporated by reference in the Offering Circular or any further amendment or supplement thereto, made by the Company prior to 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, 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 thereunder60 days; and 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.or"
Appears in 1 contract
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished to you his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Time 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 Offering Circular;
(ii) The Company, as of the date specified in the Offering Circular, has an authorized capitalization as set forth under the caption “Capitalization” in the Offering 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 Xxxxxxx owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule II hereto (the “Scheduled Subsidiaries”) have each been duly incorporated or organized and each is validly existing as an entityFLX, and where such term appliesthus Parent and the Purchaser, in good standing under and will become, indirectly, the laws owner of its jurisdiction of incorporation or organization; and all of the issued shares of capital stock of each such Scheduled Subsidiary held Shares acquired 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 set forth in Purchaser through the Offering Circular) are owned directly or indirectly by Offer. Xx. Xxxxxxx is also the Company, 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 they believe that both you and 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 Offering 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 Offering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the 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 chairman of the Board of Directors of the Company approving (the issuance "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 Special Committee its opinion, dated as of May 19, 2000 (the "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 Securities have reserved Fairness Opinion is attached as Exhibit A hereto. Holders of Shares are urged to, and should, read the Conversion Fairness Opinion carefully in its entirety. The Company has informed Purchaser that, as of May 15, 2000, there were (i) 17,058,833 Shares for issuance;
issued and outstanding, (ixii) Neither 3,015,764 Shares held in the treasury of Company, and (iii) 1,099,664 Shares issuable pursuant to the exercise of options. The Merger Agreement provides, among other things, that the Company nor 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 Scheduled Subsidiaries 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 in violation conditioned upon, among other things, the approval and adoption by the requisite vote of its Certificate shareholders of the Company of the Merger Agreement, if required by applicable law and the Company's Articles of Incorporation or By-laws or in default in (the performance or observance "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 simple majority of the outstanding Shares is the only vote of any obligationclass 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, covenant 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 owns at least 90% of the outstanding shares of each class of two or condition contained in more subsidiary corporations, the corporation holding such stock may merge such subsidiaries together, without any indenture, mortgage, deed action or vote on the part of trust, loan agreement, lease the boards of directors or other agreement or instrument to which it is the shareholders of either corporation (a party or by which it or any of its properties may be bound except for such defaults which would not individually or "short-form merger"). In the event that 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 current or future 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;
(x) The issue and sale Board or the shareholders of the Securities and the compliance by the Company with all Company. If Purchaser does not own 90% of the provisions of the Securities, the Indenture and this Agreement and the outstanding Shares following consummation of the transactions herein and therein contemplated will not Offer, Parent or Purchaser could (1i) conflict with seek to purchase additional Shares in the open market or result otherwise in order to reach the 90% threshold, permitting Parent to carry out a breach or violation of any of the terms or provisions ofshort-form merger, or constitute (ii) choose to proceed with the "long-form merger" described above. If Purchaser chooses to purchase additional Shares on the open market in order to reach the 90% threshold, the per Share consideration paid for any Shares so acquired may be greater or less than the Offer Price. Parent presently intends to carry out a default undershort-form merger, any indentureif permitted to do so under the HBCA, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel pursuant 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 subjectPurchaser will be merged with and into Company. See PLANS FOR THE COMPANY; OTHER MATTERS, (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 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;
(xi) The documents incorporated by reference in the Offering Circular or any further amendment or supplement thereto, made by the Company prior to 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, 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 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 Actbelow. 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. Xxxxxxxx, Executive Vice President and General Counsel for the Company, Xxxxx shall have furnished to you his written opinion, subject to the limitations and qualifications rights set forth in such opinion, dated herein to nominate all of the Time Company Directors (as the number of Delivery, in form and substance satisfactory 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 Offering Circular;
(ii) The Company, Common Stock Equivalents held by him as of the date specified in the Offering Circular, has an authorized capitalization as set forth under the caption “Capitalization” in the Offering 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, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule 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 set forth in the Offering Circular) are owned directly or indirectly by the Company, 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 they believe that both you and 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 Offering 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 Offering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the 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 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;
(x) 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 Xxxxx Employment Agreement has 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 been terminated by the Company or any of for Cause (as defined therein); provided, however, that so long as Xxxxx X. Xxxxx is 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 Chief Executive Officer of the Company or any 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 Scheduled Subsidiaries is subjectCommittees described in Section 2.3 hereof, (2) result in any violation of only so long as the provisions of Xxxxxx Holders or 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 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;
(xi) The documents incorporated by reference in the Offering Circular or any further amendment or supplement thereto, made by the Company prior to 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 CommissionNorthwood Holders, as the case may be, complied as to form maintain Beneficial Ownership in all material respects with the requirements aggregate of at least 50% of the Act or Common Stock Equivalents (excluding Warrant Shares) initially acquired by it pursuant to the Exchange ActFirst Series A Stock Purchase Agreement and the Second Series A Stock Purchase Agreement, as applicableand (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 rules Series C and regulations D Preferred Directors shall have the right to nominate members of the Commission thereunder; Committees described in Section 2.3 hereof, only so long as the Qualifying Series C and they have no reason to believe that 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 documents, when they were so filed, contained an untrue statement 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 material fact special or omitted general meeting or by written consent in lieu of any such meeting at any time after the consummation of the transaction in which any such Person lost its rights to state a material fact designate Directors. If any Directors or Committee members who are required to resign such positions pursuant to the preceding sentences fail to promptly tender their written resignations, the stockholders and the remaining Directors shall promptly take such steps as may be stated therein necessary or necessary appropriate under the Company's bylaws and applicable law in order to make remove such Directors and/or Committee members. The Directors designated by the statements therein, stockholders of the Company shall appoint successor committee members to fill any vacancies then existing as a result of the resignations of the Directors referred to in the light of two preceding sentences (other than any vacancy on 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 Executive Committee created by the Purchasers failure of Xxxxx X. Xxxxx to serve thereon which shall be handled 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 provided 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 ActSection 2.3(a)).
Appears in 1 contract
Samples: Stockholders' Agreement (Vantas Inc)
Xxxxx X. Xxxxxxxx, Executive Vice President and General Counsel for the Company, shall have furnished Xxxxx may continue to you his written opinion, subject to the limitations and qualifications set forth in such opinion, dated the Time 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 serve as described in the Offering Circular;
(ii) The Company, as of the date specified in the Offering Circular, has an authorized capitalization as set forth under the caption “Capitalization” in the Offering Circular and all of the issued shares of capital stock a director 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, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(iv) Those subsidiaries listed on Schedule 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 y) the Board of Directors shall have at least three directors who are directors on the date hereof and as otherwise set forth in the Offering Circular) who are owned directly or indirectly by the Company, 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 neither officers of the Company nor designees, stockholders, affiliates or associates (within the meaning of the Federal securities laws) of Parent (such Scheduled Subsidiariesdirectors, 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 Board of Directors such counsel number of persons who shall state be neither officers of the Company nor designees, shareholders, affiliates or associates of Parent so that they believe that both you the total of such persons and they are justified remaining Independent Directors serving on the Board of Directors is at least three. Any such person elected to the Board of Directors pursuant to the 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 relying upon such opinions order to fulfill its obligations under this Section 1.3 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 shall include in the Offering Circular Schedule 14D-9 mailed to stockholders promptly after the commencement of the Offer (or would an amendment thereof or an information statement pursuant to Rule 14f-1 if Parent has 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 theretofore designated directors) such information with respect to the Company and its subsidiaries taken officers and directors as a whole is required under Section 14(f) and do not interfere with the use made and proposed Rule 14f-1 in order to be made of such property by fulfill its obligations under this Section 1.3. Parent will supply 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 information 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 respect to itself and its subsidiaries taken as a whole nominees, officers, directors and do not interfere with the use made affiliates required by Section 14(f) and proposed to be made of such property and buildings by the Company and the Scheduled Subsidiaries (in giving the opinion Rule 14f-1. Notwithstanding anything 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 Agreement to the contrary, following the time of acquisition of such property directors designated 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 Offering Circular, there are no legal or governmental proceedings pending to which the Company or any of the Scheduled Subsidiaries is Parent constitute 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 Offering Circular, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the 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 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) amend or terminate on behalf of the Company approving this Agreement, the issuance Company Stock Option Agreement or the Termination Agreement, dated as of the Securities have reserved date hereof, among the Conversion Shares for issuance;
Company, Xxxxxx and Xxxxxx X. Xxxxxx (ixii) Neither the Company nor exercise or waive any of the Scheduled Subsidiaries is in violation of its Certificate of Incorporation Company's rights or By-laws remedies hereunder 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 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;
(x) 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 subjectthereunder, (2iii) result in any violation extend the time for performance of the provisions of the Certificate of Incorporation Parent's or By-laws of the Company Purchaser's obligations hereunder or thereunder or (3iv) result in take 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 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;
(xi) The documents incorporated by reference in the Offering Circular or any further amendment or supplement thereto, made by the Company prior to 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, 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 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 action 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 taken 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 Board 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 ActDirectors hereunder or thereunder.
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