SUBSCRIPTION AGREEMENT
Exhibit
1.2
Beacon
Power Corporation
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Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxxxx 00000
Gentlemen:
The
undersigned (the “Investor”) hereby
confirms its agreement with you as follows:
1.This
Subscription Agreement, including the Terms and Conditions for Purchase of Units
attached hereto as Annex I
(collectively, this “Agreement”) is made
as of the date set forth below between Beacon Power Corporation, a Delaware
corporation (the “Company”), and the
Investor.
2.The
Company has authorized the sale and issuance to the Investor of up to an
aggregate of _____________ units (the “Units”), each
consisting of (i) one share (the “Share,” collectively
the “Shares”)
of its common stock, par value $0.01 per share (the “Common Stock”), and
(ii) one warrant (the “Warrant,”
collectively the “Warrants”) to
purchase one share of Common Stock, for a purchase price of $0.50 per Unit (the
“Purchase
Price”). The initial exercise price of the Warrant is $0.74
per whole share. The shares of Common Stock issuable upon the exercise of the
Warrants are referred to herein as the “Warrant Shares.” The
Warrant Shares, together with the Shares and the Warrants, are referred to
herein as the “Securities”.
3.The
offering and sale of the Units (the “Offering”) are being
made pursuant to (1) an effective Registration Statement on Form S-3 (including
the Prospectus contained therein (the “Base Prospectus”),
the “Registration
Statement”) filed by the Company with the Securities and Exchange
Commission (the “Commission”), (2) if
applicable, certain “free writing
prospectuses” (as that term is defined in Rule 405 under the Securities
Act of 1933, as amended (the “Act”)), that have
been or will be filed with the Commission and delivered to the Investor on or
prior to the date hereof, and (3) a Prospectus Supplement (the “Prospectus
Supplement” and together with the Base Prospectus, the “Prospectus”)
containing certain supplemental information regarding the Securities and terms
of the Offering that have been or will be filed with the Commission and has been
or will be delivered to the Investor (or made available to the Investor by the
filing by the Company of an electronic version thereof with the Commission on or
prior to the time the Investor has executed this Agreement, other than the
Prospectus Supplement which shall be filed with the Commission no later than two
(2) days subsequent to the execution of this Agreement).
4.The
Company and the Investor agree that the Investor will purchase from the Company
and the Company will issue and sell to the Investor the Units set forth below
for the aggregate Purchase Price set forth below. The Units shall be purchased
pursuant to the Terms and Conditions for Purchase of Units attached hereto as
Annex I
and incorporated herein by this reference as if fully set forth herein. The
Investor acknowledges that the Offering is not being underwritten by the
placement agent (the “Placement Agent”)
named in the Prospectus Supplement and that there is no minimum offering
amount.
5.The
Investor represents that, except as set forth below, (a) it has had no position,
office or other material relationship within the past three years with the
Company or persons known to it to be affiliates of the Company, (b) it is not a
NASD member or an Associated Person (as such term is defined under the NASD
Membership and Registration Rules Section 1011) as of the Closing, and (c)
neither the Investor nor any group of Investors (as identified in a public
filing made with the Commission) of which the Investor is a part in connection
with the Offering of the Units, has acquired, or has obtained the right to
acquire, 20% or more of the Common Stock (or securities convertible into or
exercisable for Common Stock) or the voting power of the Company on a
post-transaction basis. Exceptions:
________________________________________________________________________
(If no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
6.The
Investor represents that it has received (or otherwise had made available to it
by the filing by the Company of an electronic version thereof with the
Commission) the Base Prospectus, dated July 24, 2008, which is a part of the
Company’s Registration Statement, and the documents incorporated by reference
therein, and the Prospectus Supplement, dated the date hereof (collectively, the
“Disclosure
Package”), prior to or in connection with the receipt of this Agreement.
The Investor acknowledges that, prior to the delivery of this Agreement to the
Company, the Investor may receive certain additional information regarding the
Offering, (the “Offering
Information”). Such information may be provided to the Investor by any
means permitted under the Act, including oral communications.
0.Xx
offer by the Investor to buy Units will be accepted and no part of the Purchase
Price will be delivered to the Company until the Investor has received the
Offering Information and the Company has accepted such offer by countersigning a
copy of this Agreement, and any such offer may be withdrawn or revoked, without
obligation or commitment of any kind, at any time prior to the Company sending
(orally, in writing or by electronic mail) notice of its acceptance of such
offer. An indication of interest will involve no obligation or commitment of any
kind until the Investor has been delivered the Offering Information and this
Agreement is accepted and countersigned by or on behalf of the
Company.
[Remainder
of the page intentionally left blank.]
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Number of
Units: ______________
Purchase
Price Per Unit: $0.50
Aggregate
Purchase Price: $______________
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing in the space provided below for that purpose.
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Dated
as of: December 19, 2008
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INVESTOR
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By:
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Print Name:
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Title:
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Address:
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Copies
of notices etc. pursuant to Section 7 of the
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Terms
and Conditions For Purchase of Units:
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Agreed
and Accepted
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as
of December 19, 2008:
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BEACON
POWER CORPORATION
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By:
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Name:
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Title:
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ANNEX I
TERMS AND
CONDITIONS FOR PURCHASE OF UNITS
1. Authorization and Sale of the
Units. Subject to the terms and conditions of this Agreement, the Company
has authorized the sale of the Units, which consist of the Shares and the
Warrants.
2. Agreement
to Sell and Purchase the Units; Placement Agent.
2.1 At
the Closing (as defined in Section 3.1), the
Company will sell to the Investor, and the Investor will purchase from the
Company, upon the terms and conditions set forth herein, the number of Units set
forth on the last page of the Agreement to which these Terms and Conditions for
Purchase of Units are attached as Annex I (the “Signature Page”) for
the aggregate Purchase Price therefor set forth on the Signature
Page.
2.2 The
Company may enter into agreements similar to this Agreement with other investors
(the “Other
Investors”) and expects to complete sales of the Units to them. (The
Investor and the Other Investors are hereinafter referred to as the “Investors” and this
Agreement and the agreements executed by the Other Investors are hereinafter
collectively referred to as the “Agreements”). The
Company may accept or reject any one or more Agreements in its sole
discretion.
2.3 The
Company has entered into a Placement Agency Agreement, dated December 19, 2008
(the “Placement
Agreement”), with Xxxxxxxx Curhan & Ford Co. (the “Placement Agent”)
that contains certain representations, warranties, covenants and agreements of
the Company that may be relied upon by the Investor, which shall be a third
party beneficiary thereof. Investor acknowledges that the Company has agreed to
pay the Placement Agent a fee (the “Placement Fee”) in
respect of the sale of Units to the Investor. The Company further confirms that
neither it nor any other Person acting on its behalf has provided the Investor
or their agents or counsel with any information that constitutes or could
reasonably be expected to constitute material, nonpublic information. The
Company understands and confirms that the Investor will rely on the foregoing
representations in effecting transactions in securities of the
Company.
2.4 The
Company covenants and agrees to use its best efforts to keep the Registration
Statement effective for as long as is needed to deliver freely tradable Warrant
Shares.
3. Closings
and Delivery of the Units and Funds.
3.1 Closing. The completion of the
purchase and sale of the Units (the “Closing”) shall occur
at a place and time (the “Closing Date”) and in
the manner specified by the Company and the Placement Agent as provided in the
Placement Agreement, and of which the Investor will be notified in advance by
the Placement Agent, in accordance with Rule 15c6-1 promulgated under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
3.2 Conditions
to the Company’s Obligations. The Company’s obligation to
issue and sell the Units to the Investor shall be subject to: (i) the receipt by
the Company of the Purchase Price for the Units being purchased hereunder as set
forth on the Signature Page and (ii) the accuracy of the representations and
warranties made by the Investor and the fulfillment of those undertakings of the
Investor to be fulfilled prior to the Closing Date.
1
3.3 Conditions
to the Investor’s Obligations. The Investor’s obligation to
purchase the Units will be subject to the condition that the Placement Agent
shall not have: (a) terminated the Placement Agreement pursuant to the terms
thereof or (b) determined that the conditions to the closing in the Placement
Agreement have not been satisfied.
3.4 Delivery
of Funds and Units. The Investor will settle the
Shares purchased by the Investor through DTC, and no later
than three (3) business day after the execution of this Agreement by the
Investor and the Company, the Investor shall (1) confirm that the account
or accounts at the DTC Holder to be credited with the Shares being purchased by
the Investor have a minimum balance equal to the aggregate purchase price for
the Units being purchased by the Investor, and (2) notify the DTC Holder of the
account or accounts to be credited with the Units being purchased by the
Investor. On the Closing Date, (i) the Company shall deliver the Units to the
Investor through DTC directly to the account(s) at the DTC Holder identified by
Investor and simultaneously therewith payment shall be made by the DTC Holder by
wire transfer to the Company and (ii) Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP,
counsel to the Company, shall deliver a legal opinion to the Investor in the
form attached as Exhibit B hereto.
4. Representations,
Warranties and Covenants of the Investor.
The
Investor acknowledges, represents and warrants to, and agrees with, the Company
and the Placement Agent that:
4.1 The
Investor (a) is knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in Units presenting an
investment decision like that involved in the purchase of the Units, including
investments in securities issued by the Company and investments in comparable
companies, (b) has answered all questions on the Signature Page and the Investor
Questionnaire and the answers thereto are true and correct as of the date hereof
and will be true and correct as of the Closing Date and (c) in connection with
its decision to purchase the number of Units set forth on the Signature Page,
has received and is relying only upon the Disclosure Package and the documents
incorporated by reference therein. Other than the issuance of the Units as
described in Section 1 of this Agreement, the Investor acknowledges that it has
not received from the Company any information that the Company has advised the
Investor that it deems to be material or non-public concerning the
Company.
4.2 (a)
No action has been or will be taken in any jurisdiction outside the United
States by the Company or the Placement Agent that would permit an offering of
the Securities, or possession or distribution of offering materials in
connection with the issue of the Securities in any jurisdiction outside the
United States where action for that purpose is required, (b) if the Investor is
outside the United States, it will comply with all applicable laws and
regulations in each foreign jurisdiction in which it purchases, offers, sells or
delivers Securities or has in its possession or distributes any offering
material, in all cases at its own expense and (c) the Placement Agent is not
authorized to make and have not made any representation, disclosure or use of
any information in connection with the issue, placement, purchase and sale of
the Units, except as set forth or incorporated by reference in the Base
Prospectus or the Prospectus Supplement.
4.3 (a)
The Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement, and (b) this Agreement constitutes a valid and binding
obligation of the Investor enforceable against the Investor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
to the enforceability of any rights to indemnification or contribution that may
be violative of the public policy underlying any law, rule or regulation
(including any federal or state securities law, rule or
regulation).
2
4.4 The
Investor understands that nothing in this Agreement, the Base Prospectus, the
Prospectus Supplement or any other materials presented to the Investor in
connection with the purchase and sale of the Units constitutes legal, tax or
investment advice. The Investor has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of Units.
4.5 Since
the date on which a Placement Agent first contacted the Investor about the
Offering, the Investor has kept the Offering confidential and has not engaged in
any purchases or sales of the securities of the Company (including, without
limitation, any Short Sales involving the Company’s securities). The Investor
covenants that it will keep the Offering confidential and not engage in any
purchases or sales of the securities of the Company (including Short Sales)
prior to the time that the transactions contemplated by this Agreement are
publicly disclosed. For purposes hereof, “Short Sales” include,
without limitation, all “short sales” as
defined in Rule 200 promulgated under Regulation SHO under the Exchange Act,
whether or not against the box, and all types of direct and indirect stock
pledges, forward sales contracts, options, puts, calls, short sales, swaps,
“put equivalent
positions” (as defined in Rule 16a-1(h) under the Exchange Act) and
similar arrangements (including on a total return basis), and sales and other
transactions through non-US broker dealers or foreign regulated
brokers.
5. Covenants.
5.1 Certain
Definitions. For
purposes of this Section 5, the following terms shall have the respective
meanings set forth below:
“Approved Stock Plan” means
any employee benefit plan that has been approved by the Board of Directors of
the Company, including, without limitation, the Company’s deferred compensation
arrangements, pursuant to which the Company's securities, including, without
limitation, restricted stock or restricted stock units, may be issued to any
employee, officer or director for services provided to the Company.
“Common Stock Equivalents”
means, collectively, Options and Convertible Securities.
“Convertible Securities” means
any stock or securities (other than Options) convertible into or exercisable or
exchangeable for shares of Common Stock.
“Excluded Securities” means
Common Stock issued or issuable: (i) in connection with any Approved Stock Plan,
(ii) upon exercise of the Warrants, (iii) upon conversion of any Options or
Convertible Securities that are outstanding on the day immediately preceding the
Closing Date, provided that the
terms of such Options or Convertible Securities are not amended, modified or
changed on or after the date hereof, and (iv) a transaction whose primary
purpose is not to raise equity capital for the Company's general operations,
such as in connection with any acquisition or merger by the Company of any
business, assets or technologies, or with a strategic transaction by the Company
which involves Company warrants or shares as part of a broader transaction or
set of transactions, or with efforts to finance a particular project, or with
loans from the state which may be supported by Company warrants.
“Options” means any rights,
warrants or options to subscribe for or purchase Common Stock or Convertible
Securities.
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5.2 Company
Lock-up. Until
the one month anniversary of the Closing Date, the Company will not, without the
consent of the Investor, (1) directly or indirectly, offer, sell, grant any
option to purchase, or otherwise dispose of (or announce any offer, sale, grant
or any option to purchase or other disposition of) any of its or its
subsidiaries' equity or equity equivalent securities, including without
limitation any debt, preferred stock or other instrument or security that is, at
any time during its life and under any circumstances, convertible into or
exchangeable or exercisable for shares of Common Stock or Common Stock
Equivalents (any such offer, sale, grant, disposition or announcement being
referred to as a “Subsequent
Placement”); provided that the
foregoing shall not apply to any Subsequent Placement that does not have the
right to have any of its securities registered for resale prior to the one year
anniversary of the Closing Date or Excluded Securities; or (2) amend, modify or
change the terms of any warrants to acquire Common Stock outstanding on the date
hereof.
6. Survival of Representations,
Warranties and Agreements; Third Party Beneficiary. Notwithstanding any
investigation made by any party to this Agreement or by the Placement Agent, all
covenants, agreements, representations and warranties made by the Company and
the Investor herein will survive the execution of this Agreement, the delivery
to the Investor of the Units being purchased and the payment therefor. The
Placement Agent shall be a third party beneficiary with respect to the
representations, warranties and agreements of the Investor in Section 4
hereof.
7. Notices. All notices,
requests, consents and other communications hereunder will be in writing, will
be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage
prepaid, or by facsimile or (b) if delivered from outside the United States, by
International Federal Express or facsimile, and will be deemed given (i) if
delivered by first-class registered or certified mail domestic, three business
days after so mailed, (ii) if delivered by nationally recognized overnight
carrier, one business day after so mailed, (iii) if delivered by International
Federal Express, two business days after so mailed and (iv) if delivered by
facsimile, upon electronic confirmation of receipt and will be delivered and
addressed as follows:
if to the
Company, to :
Beacon
Power Corporation
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Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxxxx, 00000
Attention:
Xxxxx Xxxxxxx
Facsimile:
(000) 000-0000
with
copies (for information purposes only) to :
Xxxxxxx
Xxxxxx Xxxxxx & Dodge LLP
000
Xxxxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Xxxxxx Xxxxx, Esq.
Facsimile:
(000) 000-0000
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If to the
Investor :
At its
address on the Signature Page hereto, or at such other address or addresses as
may have been furnished to the Company in writing, with copies (for
informational purposes only) to the person(s) identified on the Signature Page
hereto.
8. Changes. This Agreement may
not be modified or amended except pursuant to an instrument in writing signed by
the Company and the Investor.
9. Headings. The headings of the
various sections of this Agreement have been inserted for convenience of
reference only and will not be deemed to be part of this Agreement.
10. Severability. In case any
provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein will not in any way be affected or
impaired thereby.
11. Governing Law. This Agreement
will be governed by, and construed in accordance with, the internal laws of the
State of New York, without giving effect to the principles of conflicts of law
that would require the application of the laws of any other
jurisdiction.
12. Counterparts. This Agreement
may be executed in two or more counterparts, each of which will constitute an
original, but all of which, when taken together, will constitute but one
instrument, and will become effective when one or more counterparts have been
signed by each party hereto and delivered to the other parties.
13. Confirmation of Sale. The
Investor acknowledges and agrees that the Investor’s receipt of the Company’s
counterpart to this Agreement, together with the Prospectus Supplement (or the
filing by the Company of an electronic version thereof with the Commission),
shall constitute written confirmation of the Company’s sale of Units to the
Investor.
14. Press Release. The Company and
the Investor agree that the Company shall issue a press release announcing the
material terms of the Offering prior to the opening of the financial markets in
New York City on the business day immediately after the date hereof. From and
after the issuance of the press release referred to above, the Investor shall
not be in possession of any material, nonpublic information received from the
Company, its Subsidiary or any of their respective officers, directors,
employees or agents, that is not disclosed in the press release. The Company
shall not, and shall cause its Subsidiary and each of their respective officers,
directors, employees and agents, not to, provide the Investor with any material,
non public information regarding the Company or its Subsidiary from and after
the issuance of the press release without the express written consent of the
Investor.
15. Termination. In the event that
the Placement Agreement is terminated by the Placement Agent pursuant to the
terms thereof, this Agreement shall terminate without any further action on the
part of the parties hereto.
16. Expenses. The
Company shall, by not later than five business days following the Closing Date
(or at such later date as requested by Investor), reimburse Investor for all
legal expenses incurred by Investor in connection with Investor's purchase of
Units pursuant to this Agreement, up to a maximum reimbursement of
$10,000.
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EXHIBIT
A
BEACON
POWER CORPORATION INVESTOR QUESTIONNAIRE
Pursuant
to Section 3 of
Annex I to the
Agreement, please provide us with the following information:
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2.
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The
exact name that your Shares and Warrants are to be registered in. You may
use a nominee name if appropriate:
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3.
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The
relationship between the Investor and the registered holder listed in
response to item 1 above:
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4.
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The
mailing address of the registered holder listed in response to item 1
above:
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5.
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The
Social Security Number or Tax Identification Number of the registered
holder listed in the response to item 1 above:
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6.
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Name
of DTC Participant (broker-dealer at which the account or accounts to be
credited with the Shares are maintained):
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7.
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DTC
Participant Number:
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8.
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Name
of Account at DTC Participant being credited with the
Units:
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9.
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Account
Number at DTC Participant being credited with the Units:
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EXHIBIT
B
MATTERS
TO BE COVERED IN THE XXXXXXX XXXXXX XXXXXX & DODGE LLP
LEGAL
OPINION
2. The
Company has been duly incorporated, and is validly existing as a corporation in
good standing under the laws of the State of Delaware. The Company’s
Subsidiaries of which we have notice have been duly incorporated or
formed. Each of the Subsidiaries are validly existing either as a
corporation in good standing under the laws of the Commonwealth of Massachusetts
or as a limited liability company in good standing under the laws of the State
of Delaware.
3. Each
of the Company and its Subsidiaries are in good standing as a foreign
corporation and are duly qualified to transaction business in every jurisdiction
in which the Company or Subsidiary, as applicable, owns or leases properties or
conducts business for which the failure to be so qualified would have a material
adverse effect on the Company and Subsidiary, taken as a whole.
4. The
Company has the corporate power and authority to enter into and perform its
obligations under the Transaction Documents.
5. Each
of the Offered Shares and the Offered Warrants have been duly authorized and,
when issued and delivered by the Company pursuant to the Placement Agency
Agreement against due payment of applicable consideration, will be validly
issued, fully paid and nonassessable. The Warrant Shares have been duly
authorized and reserved for issuance pursuant to the terms of the Offered
Warrants and the Warrant Shares, when issued and delivered upon valid exercise
of the Offered Warrants and payment of the exercise price, will be validly
issued, fully paid and nonassessable.
6. The
issuance of the Offered Securities is not subject to any statutory preemptive
right of any securityholder of the Company or other right known to such counsel
to subscribe for or otherwise acquire the Offered
Securities.
7. Except
as set forth in or otherwise contemplated by the Registration Statement or the
Prospectus, to the knowledge of such counsel, no person has the right to require
the Company or its Subsidiary to register any securities for sale under the
Securities Act of 1933, as amended (the “Act”), by reason of
the filing of the Registration Statement with the Commission or by reason of the
issuance and sale of the Offered Securities, except for rights which have been
waived or satisfied.
8. The
statements in the Prospectus under the captions “Description of Capital
Stock” and “Description of
Warrants,” insofar as they purport to constitute summaries of the terms
of the Company’s charter or by-laws or Delaware statutes, rules and regulations
thereunder, constitute accurate summaries of the terms of such documents,
statutes, rules and regulations in all material respects.
9. The
execution, delivery and performance of the Transaction Documents do not, and
will not, result in any violation of the provisions of the charter or by-laws of
the Company in effect on the date hereof. The Transaction Documents have been
duly authorized, executed and delivered by the Company and each constitutes a
valid and binding agreement of the Company, and is enforceable against the
Company in accordance with the terms thereof.
10. To
the knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act and no proceedings for that
purpose have been instituted, are pending or are threatened by the
Commission.
11. The
Registration Statement and Prospectus, and each amendment or supplement to the
Registration Statement and Prospectus, as the case may be, as of their
respective effective or issue dates, or as of the dates they were filed with the
Commission, or for any as have been amended then as of the dates of such
amendments, as the case may be (other than the financial statements, other
financial information and supporting schedules included therein or omitted
therefrom, as to which we express no opinion), complied as to form in all
material respects with the applicable requirements of the Act and the rules and
regulations of the Commission promulgated thereunder (the “Rules and
Regulations”) and the applicable requirements of the Securities Exchange
Act of 1934, as amended (the “Exchange
Act”).
12. To
our knowledge, there is not pending or threatened in writing any action, suit or
proceeding, inquiry or investigation to which the Company or its Subsidiary is a
party, or to which the property of the Company or its Subsidiary is subject,
before or brought by any court or governmental agency or body that is of a
character required to be disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus.
13. To
the knowledge of such counsel, there are no franchises, contracts indentures,
mortgages, loan agreements, notes, leases or other instruments known to such
counsel of a character required to be described in the Registration Statement or
the Prospectus, or to be filed as exhibits thereto, which are not described or
filed as required.
14. No
filing with, or authorization, approval, consent, license, order, registration
or qualification of any domestic court or governmental agency or body of the
State of New York, the Commonwealth of Massachusetts, the DGCL, or the federal
government (other than under the Act and the Rules and Regulations, which have
been obtained, or as may be required under the securities or blue sky laws of
any jurisdiction in connection with the distribution of the Offered Securities
by the Placement Agent or the purchase of the Offered Securities by the
Investors in the manner contemplated in the Placement Agency Agreement and in
the Prospectus or the by-laws and rules of FINRA, as to which we express no
opinion) is required in connection with the due authorization, execution and
delivery of the Transaction Documents or for the offering, issuance, sale or
delivery of the Offered Securities.
15. The
execution, delivery and performance of the Transaction Documents and the
consummation of the transactions contemplated therein and in the Registration
Statement and the Prospectus (including the issuance and sale of the Offered
Securities to the Investors), compliance by the Company with its obligations
under the Placement Agency Agreement and in connection with the offering, and
issuance and sale of the Offered Securities to the Investors do not and will not
conflict with, result in a breach or violation of or imposition of any lien,
charge or encumbrance upon any property or assets of the Company pursuant to,
(i) the charter or by-laws of the Company or (ii) any statute, law, rule,
regulation or any judgment, order or decree applicable to the Company of any
court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its properties,
which violation or default would, in the case of clause (ii) above, either
individually or in the aggregate with all other violations and defaults referred
to in this paragraph (14) (if any), have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties
of the Company and its Subsidiary, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus.
16. The
Company is not, nor will be after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as described in
the Prospectus, an “investment company”
as such terms are defined in the Investment Company Act of 1940, as
amended.
While we
are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, or any supplements or amendments thereto, no facts
have come to our attention which have caused us to believe that: (i) the
Registration Statement or any amendments thereto, at the time the Registration
Statement or any such amendments became effective or as of the Closing Date,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (ii) the Prospectus as of the
Applicable Time, contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; or (iii)
the Prospectus, as of its date or as of the date hereof, contained or contains
any untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that in each case that we are not expressing a belief as to the financial
statements, including the notes and schedules thereto, or any other financial or
accounting information, or the information regarding the Placement Agent or the
method of distribution of the Offered Securities included in the Registration
Statement or the Prospectus or any such amendments or supplements
thereto).
