EXHIBIT 10.22
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is dated as of
August 22, 2002 by and between NuCo2 Inc., a Florida corporation located at 0000
X.X. Xxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000 (the "Company"), and each of the
various purchasers (each, a "Purchaser", and collectively, the "Purchasers")
identified on, and a party to, an executed copy of the Subscription Agreement to
which this Agreement is an Exhibit (the "Subscription Agreement").
SECTION 1
SALE OF COMMON STOCK
Subject to the terms and conditions hereof, the Company has offered,
and will issue and sell (the "Offering") to the Purchasers and the Purchasers
will buy from the Company upon acceptance by the Company of the Subscription
Agreements a total of up to 1,793,000 shares of common stock, $0.001 par value
per share, of the Company (the "Common Stock") for the purchase price of $9.75
per share, with each Purchaser purchasing the number of shares of Common Stock
for the aggregate cash purchase price indicated in the Subscription Agreement.
The shares of Common Stock to be issued and sold by the Company and purchased by
the Purchasers pursuant to this Agreement are herein referred to as the
"Shares." This Agreement and each Purchaser's obligation hereunder are not
conditioned on the sale of any minimum number of Shares.
The Shares will be offered and sold without registration under the
Securities Act of 1933, as amended (the "Securities Act"), in reliance upon the
exemption from registration provided by Section 4(2) of the Securities Act and
Regulation D thereunder. The Company has prepared and delivered to each
Purchaser copies of a Confidential Offering Memorandum, dated July 11, 2002 (as
it may be amended or supplemented, and including the exhibits and/or schedules
thereto and the information incorporated therein by reference, the "Offering
Memorandum").
The Purchasers (and any subsequent permitted transferees) will be
entitled to the benefits of a Registration Rights Agreement, to be dated as of
the date hereof (as attached to the Subscription Agreement as Exhibit B, the
"Registration Rights Agreement"), by and among the Company and the Purchasers.
Pursuant to the Registration Rights Agreement, the Company will file with the
Securities and Exchange Commission (the "SEC" or the "Commission") a shelf
registration statement on Form S-3 pursuant to SEC Rule 415 (the "Registration
Statement") under the Securities Act relating to the resale of the Shares by the
Purchasers. The Company shall use its commercially reasonable efforts to cause
such Registration Statement to be declared effective promptly and to be
maintained effective until the earlier of (i) the date on which all of the
Shares have been resold under the Registration Statement and (ii) the date on
which all of the Shares may be traded by the Purchasers without restriction.
SECTION 2
CLOSING; DELIVERY
2.1. CLOSING. The closing of the purchase and sale of the Shares
hereunder (the "Closing") shall be held at the offices of Xxxxxx Xxxxxxxx Frome
Xxxxxxxxxx & Xxxxxxx LLP, counsel to the Company, or at such other place
upon which the Company and the Purchasers shall agree. The Closing shall occur
simultaneously with or immediately after the execution and delivery of this
Agreement by the Purchasers and the Company, or on such later date as the
Company, the Purchasers and SunTrust Xxxxxxxx Xxxxxxxx Capital Markets, as the
exclusive agent of the Company (the "Placement Agent"), may agree.
2.2. DELIVERY. At the Closing, or within a reasonable period of time
thereafter, the Company will deliver to each Purchaser a certificate, registered
in the name of such Purchaser as shown in Schedule A-1 attached hereto, for the
number of Shares to be purchased by such Purchaser against payment of the
purchase price therefor by wire transfer per the Company's wiring instructions.
If, at the time of Closing, the Shares are eligible for clearance and settlement
through The Depository Trust Company ("DTC"), then the Company may deliver the
Shares to the Purchasers in book-entry form through DTC.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents, warrants and covenants to the Purchasers and
the Placement Agent as follows:
3.1. ORGANIZATION AND STANDING; ARTICLES AND BY-LAWS. The Company
and each of its subsidiaries is a corporation or other entity duly organized,
validly existing and in good standing under the laws of the State of its
organization. The Company and each of its subsidiaries has the requisite power
and authority to own and operate its properties and assets and to carry on its
business as presently conducted. The Company and each of its subsidiaries is
qualified to do business as a foreign corporation in all jurisdictions where the
ownership of its properties and assets and the conduct of its business requires
such qualification, except where the failure to be so qualified will not have a
material adverse effect on the business of the Company and its subsidiaries
taken as a whole, as such business is now conducted. The Company has furnished
to each of the Purchasers true and correct copies of the Company's Articles of
Incorporation, as amended and/or restated and as in effect on the date hereof
(the "Articles of Incorporation") and certified by the Secretary of State of the
State of Florida within the preceding 10 business days, and the Company's
Bylaws, as in effect on the date hereof (the "Bylaws") certified by the
Company's Secretary. The Company owns 100% of all shares of capital stock and
other equity interests in each of its subsidiaries free and clear of all
security interests, liens, pledges or negative pledges, charges, encumbrances,
mortgages, hypothecations, adverse claims or equities (each, a "Lien").
3.2. CORPORATE POWER. The Company has all requisite legal and
corporate power and authority to execute and deliver this Agreement and to
execute and deliver the agreements set forth as Exhibits hereto (collectively
with this Agreement, the "Agreements"), and at the Closing to sell and issue the
Shares as set forth in the Agreements, and to carry out and perform its
obligations under the Agreements.
3.3. SUBSIDIARIES. The Company has those subsidiaries or affiliated
companies shown on Schedule 3.3 hereto, and does not otherwise own or control,
directly or indirectly, any equity interest in any corporation, association or
business entity, other than as shown on Schedule 3.3 hereto.
3.4. CAPITALIZATION. As of the date hereof, the authorized capital
stock of the Company consists of 30,000,000 shares of Common Stock and 5,000,000
shares of Preferred Stock (the "Preferred Stock"). As of August 9, 2002, there
were 8,969,559 shares of Common Stock issued and outstanding, and 7,500 shares
of Preferred Stock issued and outstanding. No other shares of capital stock are
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issued and outstanding. As of August 9, 2002, there were options and warrants
outstanding issued by the Company to purchase an aggregate of 1,274,700 and
1,393,056 shares of Common Stock, respectively. All of the outstanding shares of
Common Stock and Preferred Stock are duly authorized, validly issued, fully paid
and nonassessable, and all such shares were issued in material compliance with
all applicable federal and state securities laws, including available exemptions
therefrom, and none of such issuances were made in violation of any pre-emptive
or other rights. The Company has reserved 2,985,298 shares of Common Stock for
issuance pursuant to its stock option and stock purchase plans and existing
outstanding warrants. Except as set forth above or on Schedule 3.4, there are no
options, warrants or other rights (including conversion, pre-emptive or other
rights) or agreements outstanding to purchase any of the Company's authorized
and unissued capital stock.
3.5. AUTHORIZATION. All corporate action on the part of the Company,
its officers, directors and shareholders, if any, necessary for the
authorization, execution, delivery and performance of the Agreements by the
Company, and for the authorization, the sale, issuance and delivery of the
Shares has been taken or will be taken prior to the Closing. The Agreements have
been duly executed and delivered by the Company, and constitute valid and
binding obligations of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and to general principles of equity and to
limitations on the rights to indemnity and contribution that exist by virtue of
public policy (the "Bankruptcy and Equity Exception"). The Shares, when issued
pursuant to this Agreement, as applicable, will be validly issued, fully paid
and nonassessable.
3.6. REPORTS AND FINANCIAL STATEMENTS. (a) The Company has
delivered, as exhibits to the Offering Memorandum, to the Purchasers prior to
the execution of this Agreement a copy of the Company's Annual Report on Form
10-K for the year ended June 30, 2001, the Company's Quarterly Reports on Form
10-Q that have been filed for all quarters ended since June 30, 2001, if any,
the definitive proxy statement for the Company's 2001 annual meeting of
shareholders, if filed with the Commission as of the date hereof, and will
deliver any Current Reports on Form 8-K filed since June 30, 2001 (as such
documents have since the time of their filing been amended or supplemented)
together with all reports, documents and information filed on or after the date
first written above through the date of Closing with the SEC, including all
information incorporated therein by reference, (collectively, the "SEC
Reports"). The SEC Reports (a) complied and will comply as to form in all
material respects with the requirements of the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and (b) did not contain
and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The audited consolidated financial statements and unaudited
interim consolidated financial statements (including, in each case, the notes,
if any, thereto), if any, included in the SEC Reports complied and will comply
as to form in all material respects with the SEC's rules and regulations with
respect thereto), were prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods involved (except as
may be indicated therein or in the notes thereto) and fairly present (subject,
in the case of the unaudited interim financial statements, to normal, recurring
year-end audit adjustments not material and to the absence of footnotes) the
financial position and shareholders' equity of the Company as of the respective
dates thereof and the consolidated earnings and cash flows for the respective
periods then ended.
(b) The summary, selected and pro forma financial and statistical
data included in the Offering Memorandum present fairly the information shown
therein and have been compiled on a basis consistent with the financial
statements included in the SEC Reports.
(c) The Company has a duly constituted audit committee of its Board
of Directors (the "Audit Committee"), all of whose members are "independent" as
defined in Rule 4200(a)(14) of the National Association of Securities Dealers,
Inc. and such committee has operated in accordance with applicable law and
regulations, the requirements of the Nasdaq National Market ("Nasdaq"). The
Company's independent public accountants have reviewed each interim financial
statement in accordance with the requirements of applicable federal securities
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laws, the Audit Committee's charter, the Commission's rules and regulations and
the applicable rules of any securities exchange or automated quotation system or
market on which the Company's securities are traded or listed. The Company has
received no communications from its independent public accountants that the
independent public accountants are considering or are likely to consider issuing
any report other than a clean, unqualified opinion as to the Company's audited
financial statements or have raised any unresolved issues with respect to any of
the Company's interim financial statements.
3.7. DISCLOSURES. The Offering Memorandum, including all exhibits
thereto, as amended or supplemented, did not and will not, as of the date
thereof through the Closing Date, contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The Company has provided to each prospective offeree of the
Securities who has requested further information concerning the Company and its
subsidiaries such information (to the extent that such information is available
or can be acquired and made available to prospective Purchasers without
unreasonable effort or expense and to the extent the provision thereof is not
prohibited by applicable law).
3.8. NO INTEGRATION. Neither the Company nor its affiliates (as
defined in Rule 501(b) under the Securities Act) ("Affiliates"), with the
exception of each of The BOC Group, Inc., X.X. Xxxxxx Partners (BHCA), L.P. and
Xxxxxxx X. Xxxx (collectively, the "Excepted Affiliates"), has, directly or
through any authorized agent, during the six month period ending on the date of
this Agreement, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities Act) in a
manner that would cause the offer and sale of the Shares to fail to be entitled
to the exemption afforded by Rule 506 of Regulation D, or under Section 4(2) of
the Securities Act. With respect to each of the Excepted Affiliates, the Company
has no knowledge that any of the Excepted Affiliates has, directly or through
any authorized agent, during the six month period ending on the date of this
Agreement, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities Act) in a
manner that would cause the offer and sale of the Shares to fail to be entitled
to the exemption afforded by Rule 506 of Regulation D, or under Section 4(2) of
the Securities Act.
3.9. NO PUBLIC OFFERING. Neither the Company nor its Affiliates has
engaged, in connection with the offering of the Shares, (i) in any form of
general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act, (ii) in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act, (iii) in any action which
would violate applicable state securities, or "blue sky," laws, or in any
directed selling efforts within the meaning of SEC Regulation S.
3.10. CONFORMITY OF DESCRIPTIONS. The Shares conform in all material
respects to the descriptions of the Company's Common Stock contained in the
Company's SEC Reports and other filings with the SEC.
3.11. NO MATERIAL ADVERSE CHANGES. Except as set forth in the SEC
Reports filed not less than five (5) business days prior to the date hereof,
there has been no (i) material adverse change in the business, results of
operations, shareholders' equity, cash flows, financial condition or business
prospects of the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business (a "Material Adverse Effect"), or
(ii) dividend or distribution of any kind declared, paid or made by the Company
on any shares of its capital stock, other than dividends accrued but not, as of
the date of Closing, paid on the Company's Preferred Stock.
3.12. NO CONFLICTS. The execution, delivery and performance of the
Agreements, the issuance and delivery of the Shares by the Company and the
consummation by the Company of the transactions contemplated herein and in the
other Agreements do not and will not (i) conflict with or violate any provision
of the Articles of Incorporation, Bylaws or other organizational documents of
the Company or any of its subsidiaries, (ii) conflict with, or constitute a
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default (or an event which, with notice or lapse of time or both, would become a
default) under, or give to other Persons any rights of termination, amendment,
acceleration or cancellation of, any material agreement, indenture, patent,
license or instrument (whether evidencing a Company debt or otherwise) to which
the Company or any of its subsidiaries is a party or by which any property or
asset of the Company or any of its subsidiaries is bound or affected or (iii)
result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the
Company or any of its subsidiaries is subject (including federal and state
securities laws and regulations and the rules and regulations of the principal
market, system or exchange on which the Common Stock is traded, quoted or
listed), or by which any assets of the Company or any of its subsidiaries is
bound or affected.
3.13. CONSENTS AND APPROVALS. Except as set forth on Schedule 3.13,
none of the Company or any of its subsidiaries is required to obtain any
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration ("Consents") with, any court or other federal, state,
local or other governmental authority, regulatory or self regulatory agency
("Governmental Authorities"), or other Person in connection with the execution,
delivery and performance by the Company of the Agreements, other than (i) the
filing of the Registration Statement with the Commission in accordance with the
Registration Rights Agreement, (ii) the application(s) or any letter(s)
acceptable to Nasdaq for the listing or quoting of the Shares on Nasdaq (and
with any other national securities exchange or automated quotation system or
market on which the Common Stock is then traded, listed or quoted), and the
notice, if any, required by Nasdaq, which has been filed as shown in Schedule
3.13, (iii) any filings, notices or registrations under applicable state
securities laws, (iv) the disclosure requirements of the Exchange Act, and the
disclosure requirements of Item 701 of SEC Regulation S-K, and (v) filing a Form
D and a Form 8-K in respect of the sale and issuance of the Shares with the
Commission (collectively, the "Required Approvals").
3.14. PROCEEDINGS. There is no action, suit, hearing, claim, notice
of violation, arbitration or other proceeding, hearing or investigation (each, a
"Proceeding") pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries or any of their respective
assets before or by any Governmental Authority or any arbitrator, which (i)
adversely affects or challenges the legality, validity or enforceability of any
of the Agreements, (ii) could reasonably be expected to, individually or in the
aggregate, have or result in a Material Adverse Effect, or (iii) if adversely
decided, could reasonably be expected to have a material adverse effect on or
delay the issuance of the Shares, or the consummation of the transactions
contemplated by the Agreement.
3.15. NO DEFAULT OR VIOLATION. Except for those that would not,
individually or in the aggregate, result in a Material Adverse Effect, none of
the Company or any of its subsidiaries is in (i) default under or in violation
of any indenture, loan or other credit agreement or any other agreement or
instrument to which any of them is a party or by which any of them or their
respective assets or properties is bound, or (ii) violation of any law, rule,
regulation, order, judgment, injunction, decree or other restriction of any
arbitrator or Governmental Authority applicable to it. None of the Company or
any of its subsidiaries is in default under, or in violation of, its articles of
incorporation, bylaws or other organizational documents or in default under or
in violation of any of the listing or quotation requirements of Nasdaq (or of
any other national securities exchange or automated quotation system or market
on which the Common Stock is then traded, listed or quoted) as in effect on the
date hereof, and the Company is not aware of any facts which could reasonably
lead to delisting or suspension of trading in the Common Stock by Nasdaq (or any
other national securities exchange or automated quotation system or market on
which the Common Stock is then traded, listed or quoted) in the foreseeable
future. The business of the Company and its subsidiaries is not being conducted
in violation of any law, statute, ordinance, rule or regulation of any
Governmental Authority, except where such violations have not resulted or are
not reasonably likely to result, individually or in the aggregate, in a Material
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Adverse Effect. None of the Company or any of its subsidiaries is in breach of
any agreement where such breach, individually or in the aggregate, is reasonably
likely to have a Material Adverse Effect.
3.16. BROKER'S FEES. No fees or commissions or similar payments with
respect to the transactions contemplated by the Agreements have been paid or
will be payable by the Company to any broker, financial advisor, finder,
investment banker or bank, other than fees payable to the Placement Agent, and
the Company shall indemnify and hold harmless the Purchasers and the Placement
Agent from and against any such claims. The Placement Agent shall be responsible
for the payment of any fees or commissions payable to brokers and dealers that
it has engaged.
3.17. LISTING COMPLIANCE. The only securities exchange or automated
quotation system or market on which the Common Stock is traded is Nasdaq, and
the Company has no other securities listed or traded on any other securities
exchange or automated quotation system or market. Except as set forth on
Schedule 3.17, the Company has not in the three (3) years preceding the date
hereof received notice (written or oral) from Nasdaq (or any other national
securities exchange or automated quotation system or market on which the Common
Stock is then traded, listed or quoted) to the effect that the Company is not in
compliance in all material respects with the listing or maintenance requirements
of any such market, exchange or trading facility. After giving effect to the
transactions contemplated by the Agreements, the Company is and will be in
compliance with all such maintenance requirements.
3.18. INTELLECTUAL PROPERTY RIGHTS. The Company and its subsidiaries
own or possess adequate rights or licenses to use all trademarks, trademark
applications, trade names and service marks, whether or not registered, and all
patents, patent applications, copyrights, inventions, licenses, approvals,
governmental authorizations, trade secrets and intellectual property rights
(collectively, "Intellectual Property Rights") which are necessary for use in
connection with their business as now conducted and as described in the SEC
Reports. None of the Company or any of its subsidiaries has knowledge that any
of them has infringed on any of the Intellectual Property Rights of any Person
and, except as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, none of the Company or any of its
subsidiaries is infringing on any of the Intellectual Property Rights of any
Person. Except as disclosed in the Offering Memorandum, there is no Proceeding
that is pending, or to the Company's knowledge, is threatened against, the
Company regarding the infringement of any of the Intellectual Property Rights.
The Company and its subsidiaries have taken reasonable security measures to
protect the secrecy, confidentiality and value of all of their Intellectual
Property Rights.
3.19. REGISTRATION RIGHTS; RIGHTS OF PARTICIPATION. Except as set
forth on Schedule 3.19, the Company has not granted or agreed to grant to any
Person any rights (including "piggy-back" registration rights) to have any
securities of the Company registered with the Commission or any other
Governmental Authority which have not been satisfied. Except as set forth on
Schedule 3.19, no Person, including current or former shareholders of the
Company, underwriters, brokers or agents, has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in
the transactions contemplated by the Agreements or to require that the Company
include any such securities in the registration of Shares as contemplated
herein. With respect to the agreements evidencing the rights set forth on
Schedule 3.19 hereto, the Company has complied in all respects with the
provisions therein regarding any right of first refusal, preemptive right, right
of participation, or any similar right of a shareholder or any other third party
to participate in the transactions contemplated by the Agreements, including,
but not limited to, notice, consent and waiver requirements.
3.20. TITLE. Except as set forth on Schedule 3.20, the Company and
its subsidiaries have good and marketable title in fee simple to all property
owned by them, in each case free and clear of all Liens, except for Liens that
do not materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company and its
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subsidiaries. Any properties held or used under lease by the Company or any of
its subsidiaries are held by them under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such properties by the Company and its
subsidiaries.
3.21. PERMITS. The Company and its subsidiaries possess all
certificates, authorizations, licenses, easements, consents, approvals, orders,
permits and approvals ("Permits") necessary to own, lease and operate its
properties and to conduct their businesses as currently conducted except where
the failure to possess such Permits is not reasonably likely, individually or in
the aggregate, to have a Material Adverse Effect ("Material Permits"), and there
is no Proceeding pending, or, to the knowledge of the Company, threatened
relating to the revocation, modification, suspension or cancellation of any
Material Permit. The Company and its subsidiaries have fulfilled and performed
all of the material obligations with respect to such Permits, and no event or
change in condition has occurred which allows, or which upon notice, the lapse
of time or both would allow, the revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such Permits,
except for failures which would not, individually or in the aggregate, have a
Material Adverse Effect. The Company and its subsidiaries are not in conflict
with, in default under or in violation of any Material Permit.
3.22. INSURANCE. The Company and its subsidiaries, and their
respective properties, are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as management
believes is prudent and customary in the business in which the Company and its
subsidiaries are engaged. None of the Company or any of its subsidiaries has any
reason to believe that they will not be able to renew such existing insurance
policies as and when such coverage expires or to obtain similar coverage from
similar insurers, at a cost that would not materially and adversely affect the
condition, financial or otherwise, or the earnings, cash flows, business or
business prospects of the Company and its subsidiaries taken as a whole.
3.23. INVESTMENT COMPANY. None of the Company or any of its
subsidiaries is (i) an "investment company" or a company "controlled by" an
"investment company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act"), or (ii) a "public utility holding company" or
a company "controlled by" a "public utility holding company," as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended (the "PUHC
Act"), and the SEC's rules and regulations under each of such Acts.
3.24. NO STABILIZATION. Neither the Company nor any of its
subsidiaries, directors, officers, or controlling persons, with the exception of
each of the Excepted Affiliates, has taken or will take, directly or indirectly,
any action designed to, or which might reasonably be expected to cause or result
in, or which has constituted, under the Exchange Act, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares. With respect to each of the Excepted Affiliates, the
Company has no knowledge that any of the Excepted Affiliates has taken or will
take, and the Company shall use commercially reasonable efforts to prevent each
of the Excepted Affiliates from taking, directly or indirectly, any action
designed to, or which might reasonably be expected to cause or result in, or
which has constituted, under the Exchange Act, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares.
3.25. LABOR. No strike, labor problem, dispute, slowdown, work
stoppage or disturbance with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is threatened.
3.26. STOCK AND OTHER PLANS. Other than as disclosed in the Offering
Memorandum, none of the Company or any of its subsidiaries has any profit
sharing, deferred compensation, stock option, stock purchase, phantom stock or
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similar plans, including agreements evidencing rights to purchase securities or
to share in the profits of the Company which is material to the Company, taken
as a whole.
3.27. SOLVENCY. The Company and each of its subsidiaries is, and
immediately after the Closing will be, Solvent. As used herein, the term
"Solvent" means, with respect to a particular date, that on such date, (i) the
fair market value of the assets of each of the Company and its subsidiaries
exceeds their respective liabilities (including, without limitation, stated
liabilities and contingent liabilities), and (ii) the Company and each of its
subsidiaries can pay its respective debts as they come due or mature. None of
the Company or any of its subsidiaries has taken any steps, and does not
currently expect to take any steps, to seek protection pursuant to any
bankruptcy, insolvency, debtor relief, reorganization or similar law, nor does
the Company or any of its subsidiaries have any knowledge or reason to believe
that creditors of the Company and its subsidiaries have initiated or intend to
initiate involuntary bankruptcy or similar proceedings.
3.28. ENVIRONMENTAL. Except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (i) the
Company and each of its subsidiaries is in compliance with and not subject to
any known liability under applicable Environmental Laws (as defined below), (ii)
the Company and each of its subsidiaries has made all filings and provided all
notices required under all applicable Environmental Laws, and has, and is in
compliance in all material respects with, all permits required under any
applicable Environmental Laws, each of which is in full force and effect, (iii)
(a) there are no pending Proceedings with respect to any Environmental Laws
affecting the Company, (b) none of the Company or any of its subsidiaries has
received any demand, claim or notice of violation of any Environmental Laws, and
(c) to the knowledge of the Company and its subsidiaries, there is no
Proceeding, notice or demand letter or request for information threatened
against the Company or any of its subsidiaries under any Environmental Law, (iv)
no Lien or restriction has been recorded under any Environmental Law with
respect to any assets, facility or property owned, operated, leased or
controlled by the Company or any of its subsidiaries, (v) none of the Company or
any of its subsidiaries has received notice that it has been identified as a
potentially responsible party under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), or any comparable
state law, (vi) no property or facility of the Company or any of its
subsidiaries (a) is listed or, to the knowledge of the Company and its
subsidiaries, proposed for listing on the National Priorities List under CERCLA
or (b) is listed in the Comprehensive Environmental Response, Compensation,
Liability Information System List promulgated pursuant to CERCLA, or on any
comparable list maintained by any state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means all
applicable federal, state and local laws or regulations, codes, orders, decrees,
judgments or injunctions issued, promulgated, approved or entered thereunder,
relating to pollution, protection of public or employee health and safety or the
environment, including, without limitation, laws relating to (i) emissions,
discharges, releases or threatened releases of Hazardous Materials (as defined
below) into the environment (including, without limitation, ambient air, surface
water, ground water, land surface or subsurface strata), (ii) the manufacture,
processing, distribution, use, generation, treatment, storage, disposal,
transport or handling of Hazardous Materials, and (iii) underground and above
ground storage tanks and related piping, and emissions, discharges, releases or
threatened releases therefrom. The term "Hazardous Material" means (a) any
"hazardous substance," as defined in the Comprehensive Environmental Response,
the Resource Conservation and Recovery Act, as amended, (b) any "hazardous
waste," as defined by the Resource Conservation and Recovery Act, as amended,
(c) any petroleum or petroleum product, (d) any polychlorinated biphenyl, and
(e) any pollutant or contaminant or hazardous, dangerous or toxic chemical,
material, waste or substance.
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3.29. ERISA. None of the Company or any of its subsidiaries has
incurred any liability for any prohibited transaction or funding deficiency or
any complete or partial withdrawal liability with respect to any pension, profit
sharing or other plan ("Plans") which is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), to which the Company or any
of its subsidiaries makes or ever has made a contribution and which would
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect. With respect to such Plans, the Company and each of its
subsidiaries is in compliance in all respects with all applicable provisions of
ERISA and have performed all their respective obligations under such Plans,
except where the failure to so comply would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
3.30. FORM S-3 ELIGIBILITY. The Company meets the requirements for
use of SEC Form S-3 under the Securities Act relating to the resale of the
Shares by the Purchasers and is eligible for filing and maintaining a
registration statement on Form S-3 relating to the resale of the Shares by the
Purchasers.
3.31. TAXES. The Company and each of its subsidiaries has made or
filed all federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject (unless and
only to the extent that the Company has set aside on its books provisions
reasonably adequate for the payment of all unpaid and unreported taxes) and has
paid all taxes and other governmental assessments and charges that are shown or
determined to be due on such returns, reports and declarations or otherwise,
except those being contested in good faith and for which adequate reserves are
shown in the Company's SEC Reports. There are no unpaid taxes in any material
amount claimed to be due from the Company by the taxing authority of any
jurisdiction, and the officers of the Company know of no basis for any such
claim.
SECTION 4
COVENANTS OF THE COMPANY
The Company hereby covenants with the Purchasers and the Placement
Agent as follows:
4.1. NOTIFICATION OF CERTAIN EVENTS. From the date hereof until the
Closing, the Company will immediately notify each Purchaser and the Placement
Agent, and confirm such notice in writing, of (i) any filing made by the Company
relating to the Offering with Nasdaq or any securities exchange or the SEC or
other securities regulator in the United States or any other jurisdiction, and
(ii) subject to the agreement of the Placement Agent and each of the Purchasers
to maintain such information in confidence, any material changes in or affecting
the financial condition, earnings, cash flows, shareholders' equity, business or
business prospects of the Company and its subsidiaries taken as a whole.
4.2. OFFERING LIMITATIONS. None of the Company or any of its
Affiliates will solicit any offer to buy or offer to sell shares of Common Stock
or securities convertible into or exchangeable for Common Stock by means of any
form of general solicitation or general advertising (as such terms are used in
Regulation D under the Securities Act) in any manner involving a public offering
(within the meaning of Section 4(2) of the Securities Act) prior to the
effective date ("Effective Date") of the Registration Statement.
4.3. INTEGRATION. None of the Company or any of its Affiliates will
offer, sell or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) in a manner that would cause the
offer and sale of the Shares to fail to be entitled to the exemption from
registration afforded by Rule 506 of Regulation D and Section 4(2), of the
Securities Act.
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4.4. DISCLOSURES. The Company, promptly following the Closing will
(i) issue a press release, in a form reasonably acceptable to the Company and
the Placement Agent announcing the sale of the Securities through the Placement
Agent, (ii) file such press release and other appropriate information with the
SEC on a Form 8-K and (iii) include in the filing of its next Form 10-Q or Form
10-K, as applicable, appropriate disclosures relating to the sale of the Shares,
including, without limitation, the disclosure required by Item 701 of Regulation
S-K. The Company shall, from and after the Closing through the period that the
Registration Statement is required to be maintained, timely file all SEC
Reports, comply with all requirements under the Exchange Act, continue to list
the Shares on Nasdaq or a national securities exchange, and use commercially
reasonable efforts to otherwise comply with the requirements of Sections 3.6 and
3.30 hereof, which are incorporated herein.
4.5. USE OF PROCEEDS. The Company will use the proceeds from the
sale of the Shares in the manner specified in the Offering Memorandum under the
caption "Use of Proceeds."
4.6. DTC ELIGIBILITY. The Company will use its commercially
reasonable efforts and cooperate with the Purchasers to permit the Shares to be
eligible for clearance and settlement through DTC.
4.7. COMPLIANCE. The Company has complied in all respects with the
provisions of those agreements which evidence the rights set forth on Schedule
3.19 regarding any right of first refusal, preemptive right, right of
participation, or any similar right of a shareholder or any other third party to
participate in the transactions contemplated by the Agreements, including, but
not limited to, any notice, consent and waiver requirements. The Company has
performed the timely notification of all affected Persons and has either (i)
solicited and obtained the appropriate consent and waiver from such Person, or
(ii) affirmatively received notice of participation in the transactions
contemplated by the Agreements from each of the affected Persons. For purposes
of the immediately preceding sentence only, the failure of any such affected
Person to exercise its rights or participate in the transactions contemplated by
the Agreements during any specified exercise or participation period shall be
deemed a waiver by the affected Person of such rights.
SECTION 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS
Each Purchaser, severally and not jointly, hereby represents,
warrants and covenants to the Company and the Placement Agent with respect to
the purchase of the Shares by such Purchaser as follows:
5.1. EXPERIENCE. Such Purchaser has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company, and the Purchaser is capable of evaluating the
merits and risks of its investment in the Company and has the capacity to
protect its own interests.
5.2. QUALIFIED INSTITUTIONAL BUYER; ACCREDITED INVESTOR. Such
Purchaser is a "qualified institutional buyer," as defined in Rule 144A of the
Securities Act, or an "accredited investor," as defined in SEC Regulation D
promulgated pursuant to the Securities Act (an "Accredited Investor").
5.3. RULE 144. Such Purchaser acknowledges that the Shares must be
held indefinitely unless subsequently registered for resale under the Securities
Act or unless an exemption from such registration is available. Such Purchaser
is aware of the provisions of Rule 144 promulgated under the Securities Act
which permit limited resale of securities purchased in a private placement,
subject to the satisfaction of certain conditions, including, among other
things, the existence of a public market for the shares, the availability of
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certain current public information about the Company, the resale occurring not
less than one year after a party has purchased and fully paid for the security
to be sold, the sale being effected through a "broker's transaction" or in a
transaction directly with a "market maker" and the number of shares being sold
during any three-month period not exceeding specified limitations.
5.4. CONFIDENTIAL ACCESS TO INFORMATION. Such Purchaser has had an
opportunity to discuss the Company's business, management and financial affairs
with its management. It has also had an opportunity to ask questions of officers
of the Company, which questions were answered to its satisfaction. Such
Purchaser understands that such discussions, as well as any written information
issued by the Company, were intended to describe certain aspects of the
Company's business and prospects. Pursuant to a confidentiality agreement, as
contemplated by the SEC's Regulation FD, such Purchaser acknowledges that it has
been provided access to material, non-public information and that the Purchaser
will keep all such information confidential except to the extent it becomes
public through no fault of the Purchaser. Further, the Purchaser acknowledges
and understands the fact that the Company is seeking to effect the private
placement of the Shares is material, non-public information and disclosure of
such information or use of such information by the Purchasers or anyone
receiving such information from the Purchasers in connection with the purchase,
sale or trade of the Company's securities (other than use by the Purchasers in
acquiring the Shares), or any hedging, derivative or similar transactions or
activities involving the Company's securities, is a violation of securities
laws. Neither such inquiries nor any other due diligence investigation conducted
by such Purchaser or any of its advisors or representatives shall modify, amend
or affect such Purchaser's right to rely on the Company's representations,
warranties and covenants contained herein or in the other Agreements. THE
PURCHASER UNDERSTANDS THAT ITS INVESTMENT IN THE SHARES INVOLVES A HIGH DEGREE
OF RISK.
5.5 ORGANIZATION; AUTHORIZATION. The Purchaser is either (i) an
individual who hereby certifies that he or she is an Accredited Investor who
possesses the legal capacity, understanding and financial ability necessary and
appropriate to enter into, and bear the risks of, the transactions contemplated
hereby, or (ii) a corporation, a limited liability company, a partnership or a
business trust duly formed, validly existing and in good standing under the laws
of the jurisdiction of its organization. Such Purchaser, if a corporation, a
limited liability company, a partnership or a business trust, has the requisite
power and authority, to enter into and to consummate the transactions
contemplated by the Agreements and otherwise to carry out its obligations under
the Agreements. The purchase by such Purchaser of the Shares hereunder has been
duly authorized by all necessary action on the part of such Purchaser. This
Agreement, when executed and delivered by such Purchaser, will constitute a
valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, subject to the Bankruptcy and Equity Exception.
5.6. RESTRICTIVE LEGEND. Such Purchaser understands that the
certificates evidencing the Shares, will bear the following legends:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES, OR
"BLUE SKY," LAWS OF ANY STATE OR OTHER DOMESTIC OR FOREIGN
JURISDICTION. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO A REGISTRATION STATEMENT IN EFFECT UNDER THE SECURITIES ACT AND
OTHER APPLICABLE LAWS OR A WRITTEN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED AND THAT AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE FOR SUCH TRANSACTIONS
UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS."
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In addition, the Purchasers acknowledge that each certificate for
Shares shall bear any additional legend required by any other applicable
domestic or foreign securities or blue sky laws.
The Company will direct its transfer agent and registrar to maintain
stop transfer instructions on record for the Shares until it has been notified
by the Company, upon the advice of counsel, that such instructions may be waived
consistent with the Securities Act and applicable domestic and foreign
securities laws. Such stop transfer instructions will limit the method of sale
of the Shares, consistent with Rule 144 or other available exemptions from
registration under the Securities Act. Any transfers other than pursuant to a
registration statement under the Securities Act will require an opinion of
counsel reasonably satisfactory to the Company and its counsel prior to such
transfers.
5.7. NO GOVERNMENTAL REVIEW. Each Purchaser understands that no
United States federal or state agency or any other government or governmental
agency or authority has passed upon or made any recommendation or endorsement of
the Shares.
5.8. RESIDENCY. Such Purchaser is a resident of the jurisdiction set
forth immediately below such Purchaser's name on the Subscription Agreement.
5.9. INVESTMENT INTENT. Such Purchaser is acquiring the Shares for
investment for its own account, not as a nominee or agent, and not with the view
to, or for resale in connection with, any distribution thereof. Such Purchaser
understands and agrees that the Shares have not been registered under the
Securities Act by reason of the exemption from the registration provisions of
the Securities Act contained in Rule 506 of Regulation D and Section 4(2) of the
Securities Act, the availability of which depends upon, among other things, the
bona fide nature of the investment intent and the accuracy of such Purchaser's
representations, warranties and covenants as expressed herein, which are being
relied upon by the Company and the Placement Agent.
5.10. NO MANIPULATION. Neither such Purchaser nor, to the
Purchaser's knowledge, any of its directors, officers, managers, subsidiaries,
controlling persons or other affiliates has taken, or presently plans to take,
directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in, or which has constituted, under the Exchange
Act, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
SECTION 6
CONDITIONS TO PURCHASERS' AND PLACEMENT AGENT'S OBLIGATIONS TO CLOSE
The obligations of the Placement Agent to close, and of each
Purchaser to purchase the Shares at the Closing is subject to the fulfillment of
the following conditions, any of which may be waived by a Purchaser:
6.1. REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company herein shall be true and correct in all material
respects as of the date when made and as of the Closing.
6.2. COVENANTS. All covenants, agreements and conditions contained
in this Agreement to be performed by the Company on or prior to the Closing
shall have been performed or complied with in all material respects.
6.3. NO INJUNCTION. No statute, rule, regulation, order, decree,
ruling or injunction shall have been enacted, entered, promulgated, endorsed or
threatened or is pending by or before any Governmental Authority of competent
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jurisdiction which in any material respect restricts, prohibits or threatens to
restrict or prohibit the consummation of any of the transactions contemplated by
the Agreements.
6.4. NO SUSPENSIONS OF TRADING IN COMMON STOCK. The trading in the
Common Stock shall not have been restricted or suspended by the Commission,
Nasdaq or any other market or exchange where such Common Stock is traded (except
for any suspension of trading of limited duration solely to permit dissemination
of material information regarding the Company).
6.5. LISTING OF COMMON STOCK. As soon as possible after the Closing,
and in connection with the filing of the Registration Statement, the Shares
shall have been listed for trading or quotation on Nasdaq.
6.6 ADVERSE CHANGES. Since the date of the financial statements
included in the Company's Quarterly Report on Form 10-Q, Annual Report on Form
10-K, or latest Current Report on Form 8-K,whichever is more recent, last filed
prior to the date of this Agreement, no event which has had or could reasonably
be expected to have a Material Adverse Effect shall have occurred which has not
been disclosed in writing to the Purchasers and the Placement Agent.
6.7. LITIGATION. No Proceeding shall have been instituted or
threatened against the Company which could reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect.
6.8. CHANGE OF CONTROL. No Change of Control shall have occurred
between the date hereof and the Closing. As used herein, "Change of Control"
means the occurrence of any of (i) an acquisition after the date hereof by an
individual or legal entity or "group" (as described in Rule 13d-5(b)(1)
promulgated under the Exchange Act), other than the Purchasers or any of their
Affiliates, of in excess of 19.9% of the voting securities of the Company, (ii)
a replacement of more than one-half of the members of the Company's Board of
Directors that is not approved by a majority of those individuals who are
members of the Board of Directors on the date hereof, or their duly elected
successors who are directors immediately prior to such transaction, in one or a
series of related transactions, (iii) the merger of the Company with or into
another Person, unless following such transaction, the holders of the Company's
securities continue to hold at least 51% of such securities following such
transaction, (iv) the consolidation or sale of all or substantially all of the
assets of the Company in one or a series of related transactions or (v) the
execution by the Company of an agreement to which the Company is a party or by
which it is bound, providing for any of the events set forth above in clauses
(i), (ii), (iii) or (iv).
6.9. CERTIFICATE OF INCORPORATION AND GOOD STANDING. The Company
shall have delivered to each of the Purchasers a copy of a certificate
evidencing the incorporation and good standing of the Company, issued by the
Secretary of State of the state where the Company is organized, as of a date
within ten (10) business days of the Closing. The Company shall have delivered
to each of the Purchasers, or their representatives, acting on behalf of all of
the Purchasers, a copy of a certificate evidencing the qualification and good
standing of the Company in such other states or jurisdictions where the
Company's ownership or operation of its properties or the conduct of its
business require the Company to be qualified to do business as a foreign
corporation.
6.10. COMPLIANCE CERTIFICATE. Should the Closing occur as of a date
other than the date of this Agreement, the Company shall have delivered to the
Purchasers a certificate of the Company executed by the President of the
Company, dated as of the Closing, certifying to the fulfillment of the
conditions specified in Section 6 of this Agreement.
6.11. SECRETARY'S CERTIFICATE. The Company shall have delivered to
the Purchaser a certificate of the Company executed by the Chief Financial
Officer and the Secretary of the Company, dated as of the Closing, certifying
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(i) resolutions adopted by the Board of Directors of the Company authorizing the
execution of the Agreements, the issuance of the Shares, the filing of the
Registration Statement, and the transactions contemplated hereby; (ii) the
Articles of Incorporation and Bylaws of the Company, each as amended, and copies
of the third party consents, approvals and filings required in connection with
the consummation of the transactions contemplated by the Agreements; and (iii)
such other documents relating to the transactions contemplated by the Agreements
as the Purchasers or the Placement Agent may reasonably request.
6.12. REGISTRATION RIGHTS AGREEMENT. The Company and the Purchasers
shall have executed, entered into and delivered the Registration Rights
Agreement, in substantially the form attached hereto as Exhibit B.
6.13. OPINION OF COUNSEL. At the Closing, the Purchasers and the
Placement Agent shall have received the opinion of Xxxxxx Xxxxxxxx Frome
Xxxxxxxxxx & Wolosky LLP, as counsel to the Company, dated as of Closing, in the
form set forth below and otherwise reasonably satisfactory to the Purchasers and
the Placement Agent, and their respective counsel to the effect that:
(a) The Company is validly existing and in good standing
under the laws of the State of Florida, with corporate power and
authority to own, lease and operate its assets and properties and
conduct its business as currently conducted and to enter into and
perform its obligations under this Agreement, the Subscription
Agreement, the Registration Rights Agreement and the other documents
and agreements to be executed by the Company at the Closing in
connection therewith (collectively, the "Operative Documents");
(b) The execution, delivery and performance by the
Company of each of the Operative Documents to which the Company is a
party have been duly authorized by the Company;
(c) No Consent or other action by, or filing or
registration with, any Governmental Authority is required for (i)
the execution and delivery by the Company of the Operative
Documents, (ii) the offer, sale, and issuance of the Shares in
accordance with the Operative Documents, (iii) the performance by
the Company of its obligations under the Operative Documents, except
such as may be required (a) in connection with the registration
under the Securities Act of the Shares pursuant to the Registration
Rights Agreement (including any filing with the National Association
of Securities Dealers, Inc.), or (b) under the "blue sky" or
securities laws of any jurisdiction in connection with the purchase
and sale or resale of the Shares;
(d) The execution, delivery and performance by the
Company of the Agreement and the other Operative Documents (in each
case assuming due authorization and execution by each party other
than the Company), and the consummation by the Company of the
transactions contemplated thereby (including the issuance, sale and
delivery of the Shares (other than with respect to the delivery in
book-entry form of Shares)) do not violate, breach or give rise to a
default, event of default or right of acceleration by the Company of
(i) any provision of the Articles of Incorporation or By-laws of the
Company, (ii) any of the terms or provisions of, or constitute a
default (or an event which, with notice or lapse of time or both,
would constitute a default) by the Company under, or give rise to
any right to accelerate the maturity or require the prepayment of
any indebtedness under, or result in the creation or imposition of
any Lien, property or assets of the Company under any material
agreement known to such counsel or (iii) the Florida Business
Corporation Act, as amended, any published United States federal, or
other published law, statute, rule, or regulation which would
ordinarily be expected to apply to the Transaction or any Order
known to such counsel to be applicable to the Company, of any
A-14
Governmental Authority or arbitrator known to such counsel to have
jurisdiction over the Company or any of its properties or assets;
(e) This Agreement and the Registration Rights Agreement
each have been duly authorized, executed and delivered by the
Company, and, assuming the due execution and delivery thereof by the
Purchasers where applicable, constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms;
(f) When issued to a Purchaser against payment therefor
in accordance with the Agreement and other Operative Documents, each
Share will be duly and validly authorized and issued, fully paid and
nonassessable, and the Purchasers, as holders thereof, will not be
subject to personal liability by reason of being such holders;
(g) No consents are required for the execution, delivery
and performance by the Company of the Operative Documents, except
for the SEC declaring the Registration Statement effective and the
approval of Nasdaq for the listing of the Shares for trading on
Nasdaq, except for waivers of preemptive rights by the holders of
the Company's securities referenced on Schedule 3.4, which waivers
are in full force and effect.
(h) The Company is not an "investment company" or a
company "controlled by" or required to register as an investment
company as such terms are defined in the 1940 Act or the PUHC Act,
and the SEC's rules and regulations thereunder; and
(j) Assuming the accuracy of the Purchasers'
representations and warranties in Section 5 of this Agreement and
the accuracy of the Company's representations and warranties in
Sections 3.8 and 3.9 of this Agreement, the offer, sale and issuance
of the Shares as contemplated by the Agreements is exempt from the
registration requirements under Section 5 of the Securities Act of
1933, as amended.
Such opinions may be subject to such assumptions, qualifications and
limitations as are customary. Without limiting the foregoing, such counsel (i)
need not express any opinion with regard to the application of laws of any
jurisdiction other than the Federal law of the United States and the relevant
corporate act of the State where the issuer is organized, (ii) may rely, as to
matters of fact, to the extent appropriate on representations or certificates of
responsible officers of the Company and certificates of public officials, (iii)
may express no opinion as to the effect of (a) bankruptcy, insolvency,
reorganization, arrangements, fraudulent transfer, moratorium or similar laws
relating to or affecting the rights of creditors and (b) general principles of
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, the exercise of judicial discretion, and the
possible unavailability of specific performance or injunctive relief, regardless
of whether considered in a proceeding in equity or at law, (iv) may express no
opinion as to compliance with the anti-fraud or information delivery provisions
of applicable securities laws, (v) may express no opinion as to compliance with
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and (vi)
may express no opinion as to the enforceability of the indemnification
provisions of the Operative Documents to the extent the provisions thereof may
be subject to limitations of public policy and the effect of applicable statutes
and judicial decisions.
Such opinion shall also contain a statement to the effect that, on
the basis of the information that was reviewed by such counsel in the course of
performing the services referred to in their opinion, considered in the light of
their understanding of the applicable law and the experience they have gained
through their practice under the securities laws, nothing came to their
attention in the course of their review has caused them to believe that any part
of the Offering Memorandum contained any untrue statement of a material fact or
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omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that such opinion may state that the limitations
inherent in the independent verification of factual matters and the character of
determinations involved in the preparation process are such that such counsel
does not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Offering Memorandum, and that it does not
express any opinion or belief as to the financial statements or schedules or
other financial data derived from accounting records contained in the Offering
Memorandum.
6.14. OTHER DOCUMENTS. The Company shall have delivered to each
Purchaser such other documents relating to the transactions contemplated by the
Agreements as the Purchasers or their counsel may reasonably request.
SECTION 7
CONDITIONS TO CLOSING OF THE COMPANY
The Company's obligation to sell and issue the Shares at the Closing
is, at the option of the Company, subject to the fulfillment as of the Closing
of the following conditions:
7.1. REPRESENTATIONS. The representations and warranties made by the
Purchasers herein shall be true and correct in all material respects on the
dates made and on the date of Closing.
7.2. PERFORMANCE BY THE PURCHASERS. Each Purchaser shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by the Agreements to be performed, satisfied
or complied with by such Purchaser at or before the Closing.
7.3. NO INJUNCTION. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated,
endorsed or threatened or is pending by or before any Governmental Authority of
competent jurisdiction which prohibits or threatens to prohibit the consummation
of any of the transactions contemplated by the Agreements.
SECTION 8
MISCELLANEOUS
8.1. GOVERNING LAW. This Agreement shall be governed in all respects
by the laws of the State of New York, without giving effect to the conflict of
law rules thereof to the extent that the application of the law of another
jurisdiction would be required thereby.
8.2. SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by the Purchasers
and the closing of the transactions contemplated hereby until the one year
anniversary date of the Closing.
8.3. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto,
provided that the rights of the Purchasers to purchase the Shares shall not be
assignable without the consent of the Company.
8.4. AMENDMENT AND WAIVER. This agreement may not be amended or
waived except in writing executed by the party against which such amendment or
waiver is sought to be enforced. No course of dealing between or among any
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persons having any interest in this Agreement will be deemed effective to modify
or amend any part of this Agreement or any rights or obligations of any person
under or by reason of this Agreement. In addition, neither the consent of the
Placement Agent, nor the Placement Agent's delivery of any such amendment or
supplement to the Offering Memorandum prepared after the date of Closing, shall
constitute a waiver of any of the Company's representations and warranties or
any of the conditions set forth in Section 6 hereof.
8.4. NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by United States
mail, postage prepaid, by reliable overnight delivery service such as UPS or
FedEx, or by facsimile transmission, or otherwise delivered by hand or by
messenger, addressed (a) if to any Purchaser, at the Purchaser's address set
forth on the Subscription Agreement, or at such other address as such Purchaser
shall have furnished to the Company in writing in the manner set forth herein,
or (b) if to any other holder of any shares, at such address as such holder
shall have furnished the Company in writing, or, until any such holder so
furnishes an address to the Company, then to and at the address of the last
holder of such shares who has so furnished an address to the Company, or (c) if
to the Company, one copy should be sent to the Company at the address listed
below, in each case with a copy to the Placement Agent at the address also
listed below. In the event that any notice or other communication is sent by
facsimile transmission to the Company, such transmission shall be followed
immediately by overnight delivery to the Company of such notice or other
communication.
Company: Placement Agent:
------- ---------------
NuCo2 Inc. SunTrust Xxxxxxxx Xxxxxxxx
0000 X.X. Xxxxxx Xxxxx 0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxx, Xxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxx, General Counsel Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
-------------- with a copy to:
--------------
Company Counsel:
Placement Agent Counsel:
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx &
Xxxxxxx LLP Xxxxxx & Bird LLP
000 Xxxx Xxxxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 0000 Xxxx Xxxxxxxxx Xxxxxx
Attention: Xxxxx Xxxxxxx, Esq. Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. XxxXxxxxx, III, Esq.
Each such notice or other communication shall for all purposes of
this Agreement be treated as effective or having been given when delivered, or
if by facsimile transmission, as indicated by the facsimile imprint date.
8.5. DELAYS OR OMISSIONS. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any
Purchaser or the Placement Agent upon any breach or default of the Company under
the Agreements shall impair any such right, power or remedy of such Purchaser or
the Placement Agent, nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any Purchaser or the Placement Agent of any breach or default under
this Agreement, or any waiver on the part of any party hereto or the Placement
Agent of any provisions or conditions of this Agreement, must be in writing and
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shall be effective only to the extent specifically set forth in such writing.
All remedies, either under this Agreement or by law or otherwise afforded to any
Purchaser, shall be cumulative and not alternative.
8.6. EXPENSES. The Company and the Purchasers shall each bear their
own legal and other expenses with respect to this Agreement.
8.7 SUBSCRIPTION AGREEMENT; COUNTERPARTS. Persons may become parties
to this Agreement by executing the Subscription Agreement, which may be executed
in two or more identical counterparts and by facsimile, each of which shall be
deemed an original and all of which shall constitute one and the same agreement.
Any signature that is delivered by facsimile transmission shall be valid and
binding, with the same force and effect as if an original, manually signed
counterpart.
8.8. SEVERABILITY. In the event that any provision of this Agreement
is unenforceable, the remaining provisions shall continue in full force and
effect.
8.9. SECTION HEADINGS, ETC. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement. As used herein, any gender shall include all other
genders, and the singular shall include the plural and vice versa. The terms
"include," "including" and similar terms shall mean include without limitation,
whether by enumeration or otherwise.
8.10. NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for
the benefit of the parties hereto, the Placement Agent (and its directors,
officers, agents, Affiliates and controlling persons), and their respective
permitted successors and assigns, and no other person is intended to or shall
have any rights hereunder whether as a third party beneficiary or otherwise.
8.11. INDEPENDENT NATURE OF PURCHASERS' OBLIGATIONS AND RIGHTS. The
obligations of each Purchaser hereunder are several and not joint with the
obligations of the other Purchasers hereunder, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser hereunder. The obligations of each Purchaser are not conditioned upon
the action of any other Purchaser. Nothing contained herein or in any other
agreement or document delivered at the Closing, and no action taken by any
Purchaser pursuant hereto or thereto, shall be deemed to constitute the
Purchasers as a partnership, an association, a joint venture or any other kind
of Person, or create a presumption that the Purchasers are in any way acting in
concert with respect to such obligations or the transactions contemplated by
this Agreement. Each Purchaser shall be entitled to protect and enforce its
rights, including, without limitation, the rights arising out of the Agreements,
and it shall not be necessary for any other Purchaser to be joined as an
additional party in any proceeding for such purpose.
8.12. FURTHER ASSURANCES. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as the other parties may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
8.13. CONFIDENTIALITY. All material, non-public information
disclosed by the Company to the Purchasers pursuant to this Agreement or
otherwise shall be held strictly confidential and used by the Purchasers solely
for evaluating purchases of Shares in this Offering, provided this obligation
shall not apply to any information that is generally available to the public or
becomes available to the public without any disclosure by the Purchasers or
their agents or due to negligence or misconduct of the Purchasers or their
agents. The provisions of this Section 8.13 shall not in any way amend or
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supercede the provisions of any other confidentiality, non-disclosure or similar
agreement with the Company to which any Purchaser is bound.
8.14. ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Registration
Rights Agreement, the Subscription Agreement and the other Operative Documents
constitute the entire understanding and agreement between the Purchasers and the
Company with regard to the subject matter. Except as expressly provided herein,
this Agreement, any of the other Agreements or any term hereof may be amended,
modified, waived or discharged only by a written instrument signed by the party
waiving any term, condition, or right or remedy that benefits it hereunder.
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