Purchase Agreement 买卖合同 -
6.1 NONCOMPETITION. ?
?(a) Restrictions on Competitive Activities. Subject to the provisions of Section 6.10, each Seller agrees that after the Closing, Buyer and the Homebuilding Entities shall be entitled to the goodwill and going concern value of the Homebuilding Business and to protect and preserve the same to the maximum extent permitted by law. For these and other reasons and as an inducement to Buyer to enter into this Agreement, each Seller, other than _________, agrees that for a period of four years after the Closing Date or one year after termination of that Seller’s employment or consulting agreement with Buyer or any of the Homebuilding Entities, whichever is later, and in the case of _________, for a period of two years after the Closing Date, such Seller will not, in the States of _________(state) or _________(state), directly or indirectly, for its own benefit or as agent for another carry on or participate in the ownership, management or control of, or be employed by, or consult for, or serve as a director of, or otherwise render services to, the business of constructing or selling single family homes of any business entity. ?
?(b) Exceptions. Nothing contained herein shall limit the right of a
Seller as an investor to hold and make investments in securities of any corporation or limited partnership that is registered on a national securities exchange or admitted to trading privileges thereon or actively traded in a generally recognized over-the-counter market, provided such Seller’s equity interest therein does not exceed 5% of the outstanding shares or interests in such corporation or partnership. ?
?(c) Nonsolicitation. During the period of one year after the Closing Date, Sellers and their affiliates (excluding the Homebuilding Entities after the Closing Date) shall refrain from soliciting for employment, directly or indirectly, any then employees of the Homebuilding Entities. This prohibition shall not extend to employing any such person who contacts Sellers or their affiliates on his or her own initiative without any direct or indirect solicitation or encouragement from any Seller or its affiliates or employees (it being understood that placing a general advertisement does not constitute solicitation). ?
?(d) Special Remedies and Enforcement. Each Seller recognizes and agrees that a breach by such Seller of any of the covenants set forth in this Section 6.1 could cause irreparable harm to Buyer, that Buyer’s remedies at law in the event of such breach would be inadequate, and that, accordingly, in the event of such breach a restraining order or injunction or both may be issued against such
Seller, in addition to any other rights and remedies which are available to Buyer. If this Section 6.1 is more restrictive than permitted by the Laws of the jurisdiction in which Buyer seeks enforcement hereof, this Section 6.1 shall be limited to the extent required to permit enforcement under such Laws. Without limiting the generality of the foregoing, the parties intend that the covenants contained in the preceding portions of this Section 6.1 shall be construed as a series of separate covenants, one for each state. Except for geographic coverage, each such separate covenant shall be deemed identical in terms. If, in any judicial proceeding, a court shall refuse to enforce any of the separate covenants deemed included in this Section 6.1, then such unenforceable covenant shall be deemed eliminated from these provisions for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants to be enforced. ?
?6.2 NON-DISCLOSURE OF PROPRIETARY DATA. ?
?Each Seller agrees that such Seller will not, at any time, make use of, divulge or otherwise disclose, directly or indirectly, any trade secret or other proprietary data concerning the business or policies of any Homebuilding Entity as they relate to the Homebuilding Business, other than form documents used by any Homebuilding Entity, or of Buyer obtained in connection with the negotiation,
execution, or performance of this Agreement. In addition, each Seller agrees not to make use of, divulge or otherwise disclose, directly or indirectly, to persons other than Buyer, any confidential information concerning the business or policies of any Homebuilding Entity as they relate to the Homebuilding Business which may have been learned in any such capacity or of Buyer which may have been learned in connection with the negotiation, execution, or performance of this Agreement. The Seller’s obligations under this Section with respect to any trade secret, other proprietary data, or confidential information of Buyer shall survive the termination of this Agreement if this Agreement is terminated prior to the Closing. ?
?6.3 TAX RETURNS. ?
?(a) The Sellers shall cause to be prepared and timely filed (or provided to Buyer for execution and filing, if applicable) when due (taking into account all extensions properly obtained) all income and franchise Tax Returns of the Homebuilding Entities for taxable periods ending on or before the Closing Date, and all other Tax Returns required to be filed by or on behalf of such entities on or before the Closing Date. All Tax Returns described in this Section 6.3(a) shall be prepared and filed in a manner consistent with past practice and, on such Tax Returns, no position shall be taken,
election made or method adopted without Buyer’s written consent (which shall not be unreasonably withheld) that is inconsistent with positions taken, elections made or methods used in preparing and filing similar Tax Returns in prior periods (including, but not limited to, positions, elections or methods which would have the effect of deferring income to periods after the Closing Date). ?
?(b) Buyer shall cause to be prepared and timely filed all Tax Returns of the Homebuilding Entities that are not described in Section 6.3(a) above. If any such Tax Return covers a period beginning before the Closing Date, Sellers shall have the right to review and approve (which approval shall not be unreasonably withheld) such Tax Return before it is filed if it could affect the Sellers’ or Shareholders’ liability for Taxes to any taxing authority or their indemnification obligations to Buyer under this Agreement. Any Tax Return described in the preceding sentence shall be provided to the Sellers not less than 14 days prior to the proposed filing date together with any underlying information or records requested by the Sellers to assist their review. ?
?6.4 TAX COOPERATION. ?
?(a) After the Closing, the Sellers and the Buyer shall, and shall
cause their respective Affiliates to, cooperate fully with each other in the preparation and filing of all Tax Returns and any Tax investigation, audit or other proceeding respecting the Homebuilding Business (a Tax Proceeding ) and shall provide, or cause to be provided, any records and other information in their possession or control or in the control of their agents reasonably requested by such other party in connection therewith as well as access to, and the cooperation of, their respective auditors. Buyer shall notify Sellers in writing promptly upon receipt by Buyer or any Affiliate of any notice of any pending or threatened audits or assessments relating to Taxes with respect to any Homebuilding Entity other than Taxes as to which Sellers or the Shareholders have no indemnification obligation or other liability relating to Taxes. Sellers shall have the right to control the handling and disposition of such audit and any administrative or court proceeding relating thereto (and to employ counsel of their choice at their expense) to the extent that such audit or proceeding might result in increased Tax liabilities of the Sellers or the Shareholders for the period covered by the Tax Proceeding or an increase in their indemnification obligations to Buyer under this Agreement; provided, however, that Buyer may monitor the Tax Proceeding. Sellers shall not agree to any settlement concerning Taxes of any Homebuilding Entity for any taxable period which would result in an increase in Taxes of Buyer or any Homebuilding Entity for any taxable period ending after the Closing Date, without the prior written consent of the Buyer (which consent shall not be unreasonably withheld). The Buyer and the Sellers shall bear their
respective costs and expenses in connection with any Tax Proceeding. Any information obtained pursuant to this Section 6.4 or pursuant to any other Section hereof providing for the sharing of information or the review of any Tax Return or other information relating to Taxes shall be subject to Section 10.9. ?
?(b) At Buyer’s election, made not less than 60 days before any such election must be made, (i) the CCC Corp. Sellers and DDD Sellers, jointly with Buyer, shall make timely and irrevocable elections under Section 338(h)(10) of the Code and similar elections under any applicable state or local Tax laws for CCC Corp. and DDD (the Section 338(h)(10) Elections ), (ii) the Partnership Sellers shall cause the Parent Partnerships and their Subsidiaries to make, timely and irrevocable elections under Section 754 of the Code and similar elections under any applicable state or local Tax laws for the Parent Partnerships and their Subsidiaries, and (iii) the EEE Sellers and FFF Sellers shall cause EEE, FFF, and their Subsidiaries to make timely and irrevocable elections under Section 754 of the Code and similar elections under any applicable state or local Tax laws for EEE, FFF, and their Subsidiaries (collectively with the elections for the Parent Partnerships and their Subsidiaries, the Section 754 Elections and collectively with the Section 338(h)(10) Elections, the Tax Elections ). If the Tax Elections are made, Buyer, Sellers, and the Homebuilding Entities shall report the transactions contemplated herein consistently with the Tax Elections and shall take no position
contrary thereto unless and to the extent required to do so pursuant to a final determination of liability in respect of a Tax that, under applicable law, is not subject to further appeal, review, or modification through proceedings or otherwise). To the extent possible, Buyer, Sellers, and the Homebuilding Entities, as applicable, shall execute at the Closing any and all documents, statements, and other forms that are required to be submitted to any Taxing authority in connection with the Tax Elections (the Tax Election Forms ). If any Tax Election Forms are not executed at the Closing, Buyer, Sellers, and the Homebuilding Entities, as applicable, shall prepare and complete each such Tax Election Form no later than 30 days before the date such Tax Election Form is required to be filed, shall cause such Tax Election Forms to be duly executed by their respective authorized persons, and shall timely file such Tax Election Forms in accordance with applicable Tax laws. ?
?(c) Buyer and Sellers agree to use their best efforts to agree upon a schedule and supporting sub-allocation schedules, in substantially the form of (but without regard to the specific numbers on) Schedule 6.4(c) hereto (collectively the Allocation Agreement ), and Sellers and Buyer agree to cause each of the Homebuilding Entities to agree to the Allocation Agreement insofar as the Allocation Agreement addresses them, (i) to allocate the CCC Corp. Stock Purchase Price and the liabilities of CCC Corp. (and other relevant items) to the assets of CCC Corp. and the DDD Stock Purchase Price and
liabilities of DDD (and other relevant items) to the assets of DDD, in both cases for all applicable Tax purposes, including the Section 338(h)(10) Elections, and (ii) to make and allocate the basis adjustments to the assets of EEE, the assets of FFF and its Subsidiary, and the assets of the Parent Partnerships and their respective Subsidiaries, in each case for all applicable Tax purposes, including the Section 754 Elections and the allocation of inside basis adjustments resulting from the Section 754 Elections. Sellers shall initially prepare the schedules setting forth the allocations described above and submit the proposed allocations to Buyer within the later of (x) 30 days after the date of delivery to Buyer of the _________(YEAR) audited financial statements referred to in Section 6.8 hereof, and (y) 30 days after the final determination of the adjustment to the Purchase Price pursuant to Section 1.6 hereof, but in no event later than 120 days after the Closing Date. If, within 30 days after Sellers’ submission, Buyer has not objected in writing to such allocation, specifying in reasonable detail the nature and amount of the disagreement, Sellers’ proposed allocation shall become the Allocation Agreement. If Buyer objects, then unless Buyer and Sellers resolve such disagreement within 10 days after delivery of Buyer’s notice of disagreement, the disagreement shall be resolved by an accounting firm chosen as stated in Section 1.6. Such accounting firm shall resolve such disagreement within 30 days of submission of the disagreement to it. The determination of such accounting firm shall be final and binding on Buyer and Sellers (absent manifest error in calculations) and the fees and expenses of
such accounting firm shall be borne equally by Sellers, on the one hand, and Buyer, on the other hand. Notwithstanding the foregoing, Buyer and Sellers hereby agree that (A) subject to any adjustment imposed by clause (E) below to avoid suspended basis, (1) unless either the Goodwill Cap imposed by (B) below or the Goodwill Floor imposed by clause (C) below applies, an amount equal to 75% of the Basis Increase (defined below) shall be allocated on the Allocation Agreement to goodwill, and 25% of the Basis Increase shall be allocated on the Allocation Agreement to real property inventory, and (2) if either the Goodwill Cap or the Goodwill Floor applies, then the amount of the Basis Increase allocated to goodwill shall be equal to the Goodwill Cap or the Goodwill Floor, as applicable, and the amount of the Basis Increase allocated to real property inventory shall be increased (if the Goodwill Cap applies) or decreased (if the Goodwill Floor applies) accordingly from the 25% amount otherwise allocable; (B) the aggregate amount of the Basis Increase that is allocated on the Allocation Agreement to goodwill and all other assets that would be Class IV or Class V assets within the meaning of the Treasury Regulations under Section 338 of the Code (collectively, Goodwill ) shall not exceed an amount (the Goodwill Cap ) equal to 36% of the Purchase Price (as adjusted pursuant to Section 1.6); (C) the aggregate amount of the Basis Increase that is allocated to Goodwill shall not be less than an amount (the Goodwill Floor ) equal to the lesser of (1) 30% of the Purchase Price (as adjusted pursuant to Section 1.6) and (2) the Basis Increase; (D) 65% of the amount allocated to real property
inventory pursuant to clause (A) shall be allocated on the Allocation Agreement to real property inventory located in _________(state); and (E) the parties will use their best efforts to cause the allocations to be made such that no suspended basis adjustments result, but notwithstanding clauses (A) through (D) above any amount otherwise allocable to inventory under clause (A) that would result in a suspended basis will instead be allocated to goodwill. Basis Increase means the aggregate net increase to the tax basis of the assets of the Homebuilding Entities resulting from the Section 754 Elections and the Section 338(h)(10) Elections. ?
?6.5 OTHER COOPERATION. ?
?After the Closing, the Buyer will afford the Sellers, and their respective accountants, counsel and other representatives, reasonable access during normal business hours to the books and records of the Homebuilding Entities for the periods prior to the Closing. Sellers, or their respective representatives may, at such Seller’s own expense, make copies of such books and records. ?
?6.6 EMPLOYEES AND EMPLOYEE BENEFITS. ?
?Buyer shall provide, or cause the Homebuilding Entities to provide, employee benefits to the Homebuilding Entities employees who are retained after the Closing Date that are at least as favorable to such employees in the aggregate as the benefits provided by the Homebuilding Entities to their employees as of the date of this Agreement. ?
?6.7 LEWIS NAME AND MARK LICENSE. ?
?Upon the Closing, Buyer, DDD and Sellers will enter into an agreement in substantially the form of Exhibit J hereto (the License Agreement ). Nothing in this Agreement shall prohibit Sellers or their affiliates from using the name Lewis alone or in combination with any of the following words: Industrial, Commercial, Retail, Apartment Communities, Retirement, Asset Management, Family Asset Management, Holdings, Family Holdings and any name consisting of initials, and in each case such names may include the words Company, Inc., LLC, or similar words. ?
?6.8 FISCAL _________(YEAR) AUDITED FINANCIAL STATEMENTS. ?
?As soon as practicable after the Closing, and in any event within 60 days following the Closing Date, Sellers shall cause to be delivered to Buyer a combined balance sheet for the Homebuilding Business of the Homebuilding Entities as of _________,_________,_________(M/D/Y) and related combined statements of operations, equity and cash flows of the Homebuilding Business of the Homebuilding Entities for the year then ended, all examined by Ernst Young LLP (or another independent public accounting firm selected by mutual agreement of the Sellers and Buyer) whose audit report thereon shall be included with such statements, prepared in conformity with GAAP applied on a basis consistent with the audited financial statements referred to in Section 7.2(g). Buyer shall cooperate fully with Sellers and shall provide Sellers with access to the books and records of the Homebuilding Entities and such other assistance as Sellers reasonably request (including, without limitation, assignment of Buyer’s or Homebuilding Entities’ personnel to the project). Buyer will reimburse Sellers upon request 50% of all reasonable out-of-pocket costs and expenses actually incurred by Sellers in the preparation of such statements. ?
?6.9 TENANT LISTS. ?
?At the Closing, Sellers shall deliver to Buyer a list of the then
current tenants of apartment buildings owned by Sellers or their Affiliates who are entitled to participate in Sellers or their Affiliates Rent to Own program. For so long as both Buyer and Sellers, in their respective sole discretion, determine to continue to participate in the Rent to Own program, Sellers will provide to Buyer at least semiannually a list of tenants of apartment buildings owned by Sellers or their Affiliates who are entitled to participate in such program. ?
?6.10 BUYER’S RIGHT OF FIRST OFFER. ?
?(a) Right of First Offer. Restricted Party agrees that during the period from the Closing Date to the fourth anniversary of the Closing Date (the Right of First Offer Period ), the Restricted Party shall not, and the Restricted Party shall cause any Controlled Entity not to, offer to sell or sell, or propose to enter into any joint venture with respect to, any Covered Properties without first offering such Covered Properties for sale or joint venture to Buyer pursuant to the procedures described below (the Right of First Offer ). Notwithstanding the foregoing, neither the Restricted Party nor the Controlled Entity shall be required to offer any Covered Properties to Buyer hereunder if such Covered Properties (i) are being transferred to another Controlled Entity or to any other Seller, or (ii) if such Covered Properties consists of 20 or fewer lots (provided that
not more than 40 lots may be excluded from the Right of First Offer pursuant to this clause (ii) during any calendar year) or (iii) the project in which the Covered Lots is located consists of 20 or fewer lots. For the purposes of this Section 6.10, (A) Restricted Party means the Seller which is developing the Covered Property in question; (B) Covered Properties means any for sale residential lots that are developed by a Restricted Party or any Controlled Entity in _________(state) or _________(state), whether for attached or detached housing, other than lots to be sold for $300,000 or more or to a governmental entity; and (C) Controlled Entity means any entity in which direct or indirect beneficial ownership (as described in Rule 13d-3 under the Securities Exchange Act of 1934) of voting securities represents at least 51% of the outstanding voting power of a Person is held by one or more Restricted Parties. In the event that a Restricted Party or a Controlled Entity is developing a mixed use project, only the lots included therein that would constitute Covered Properties as defined above shall be deemed Covered Properties. ?
?(b) Offer. Prior to offering for sale or joint venture any Covered Properties, the Restricted Party shall (or the Restricted Party shall cause the Controlled Entity to) provide written notice to Buyer describing such Covered Properties (the Offered Properties ) and stating the lot prices or joint venture terms, whether such Offered Properties are being offered as finished lots, mapped lots or in another entitlement state, and other material terms at which the
Restricted Party (or the Controlled Entity) offers to sell or joint venture the Offered Properties to Buyer (the Offer ). ?
?(c) Evaluation Notice. Within ten (10) days following receipt of the Initial Offer, Buyer shall notify the Restricted Party in writing whether or not Buyer intends to evaluate the Offered Properties (an Evaluation Notice ). If the Evaluation Notice indicates that Buyer does not wish to evaluate the Offered Properties or if Buyer fails to deliver an Evaluation Notice to the Restricted Party within such ten (10) day period, the Restricted Party (or the Controlled Entity) shall be free to negotiate and conclude a sale or joint venture, as specified in the Offer, of the Offered Properties with other Persons for a period of one (1) year following receipt by the Buyer of the Offer. If the Evaluation Notice is received by the Restricted Party within such ten (10) day period and it indicates that Buyer wishes to evaluate the Offered Properties, then for thirty (30) days following receipt by the Restricted Party of the Evaluation Notice, Buyer shall have the right to evaluate the Offered Properties (the Evaluation Period ) and the remainder of this Section 6.10 shall apply. ?
?(d) Certain Information. During the first ten (10) days of the Evaluation Period, the Restricted Party shall, or shall cause the Controlled Entity to, promptly provide Buyer with such documents and information concerning the Offered Properties as Buyer shall
reasonably request to the extent such documents and information are possessed by or reasonably available (without cost or expense) to the Restricted Party and the Controlled Entity. The type of information to be provided shall include the square footage minimums applicable to such lots and other restrictions (including deed restrictions, if applicable) relating to such lots. Neither the Restricted Party nor the Controlled Entity makes or shall be deemed to make any representation or warranty as to the accuracy or completeness of such documents and information. Buyer will maintain the confidentiality of such documents and information, provided that this will not prevent disclosure by Buyer to the extent that such disclosure is required by law or court order. ?
?(e) Acceptance; Rejection; Matching. Prior to the end of the Evaluation Period, Buyer shall either accept or reject the Offer. If Buyer accepts the Offer, the Restricted Party and Buyer shall use their, and the Restricted Party shall cause the Controlled Entity to use its, good faith efforts to conclude the sale or joint venture, as the case may be, of such Offered Properties on the terms contained in the Offer as expeditiously as practicable. If Buyer rejects the Offer, the Restricted Party (or the Controlled Party) shall be free to negotiate with, and sell or joint venture, as specified in the Offer, the Offered Properties to, other Persons provided that: ?
?(i) the Restricted Party may not (or the Restricted Party shall cause the Controlled Entity not to) accept any offer to purchase or joint venture, as the case may be, the Offered Properties from any other Person during the Right of First Offer Period without first re-offering the Offered Properties on the same terms to Buyer if (a) the other offer contains a closing sales price for the Offered Properties that is less than the closing sales price contained in the Offer or, if the Offer relates to a joint venture, contains terms in the aggregate less favorable to the Restricted Party (or the Controlled Entity), (b) the Restricted Party (or the Controlled Entity) changes the entitlement state of the Offered Properties, or (c) the other offer is for the purchase of the Offered Properties and the Offer was for a joint venture of the Offered Properties, or vice versa. For this purpose, if the price contained in either the Offer or in the other offer is payable over time in whole or in part (the financed portion ), then the present value of the financed portion shall be calculated using an 8% discount rate, and such present value shall be deemed to be included in the price for comparison purposes; and ?
?(ii) the Restricted Party shall be required to give (or the Restricted Party shall cause the Controlled Entity to give) to Buyer ten (10) days to match any offer described in Section 6.10(e)(i) above. ?
?(f) Reoffer in Certain Circumstance. Subject to the terms of
Section 6.10(g), the Restricted Party shall be required to (and the Restricted Party shall cause the Controlled Entity to) offer Buyer another Evaluation Period in accordance with this Section 6.10 with respect to any Offered Properties which the Restricted Party or a Controlled Entity, as the case may be, is continuing to offer for sale or propose to joint venture if such Offered Properties have not been sold or joint ventured by the later of one (1) year after the expiration of (i) the previous Evaluation Period with respect to such Offered Properties or (ii) if applicable, to such Offered Properties, the ten (10) day match period described in Section 6.10(e)(ii). ?
?(g) Termination of Right of First Offer. In the event of a breach or default by Buyer under (i) an agreement for purchase and sale or joint venture for any of the Offered Properties or (ii) any obligations or restrictions imposed by the documents of conveyance of any Offered Properties to Buyer (the Offered Properties described in (i) or (ii) being the Subject Offered Properties ) and such breach or default is not cured within any applicable cure period provided in the applicable agreement or document and after any notice required by any such agreement or document has been given, the provisions of this Section 6.10 shall automatically terminate and be of no further force and effect with respect to all Subject Offered Properties and with respect to all other Covered Properties located in the project(s) in which the Subject Offered Properties are located. ?
?(h) No Obligation to Sell. It is understood that neither the Restricted Party nor any Controlled Entity has an obligation to market or sell any Covered Properties (provided that the foregoing shall not relieve the Restricted Party from complying with this Section 6.10 if it decides to offer for sale any Covered Properties) or to accept any offer made by Buyer. ?
?(i) Sierra Lakes Adjacent Property. Without Buyer’s consent in its sole discretion, Sellers will not enter into any joint venture, partnership, or similar agreement with a third party with respect to the approximately 135-acre property adjacent to the Sierra Lakes property, if such agreement would prevent Sellers from offering such property to Buyer in accordance with this Section 6.10. ?
Purchase Agreement 买卖合同 -
Opinions to be given by special counsel to the Company ?
? 1. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of _________(STATE) and has the corporate power and authority to enter into and perform its obligations under the Transaction Documents. ?
? 2. The execution, delivery and performance by the Company of the Transaction Documents have been duly authorized by all necessary corporate action of the Company, and each of the Transaction Documents has been duly executed and delivered by or on behalf of the Company. Each of the Transaction Documents constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. ?
? 3. When issued in accordance with the Purchase Agreement and after the Company’s receipt of payment for the Shares, the Shares will be duly authorized, validly issued, fully paid and nonassessable. The Shares are not subject to any preemptive rights provided for in the Certificate of Incorporation or Bylaws of the Company, each as amended to date. ?
? 4. The execution and delivery of the Transaction Documents and the performance by the Company of its obligations thereunder, do
not (A) violate any provision of the Certificate of Incorporation or Bylaws of the Company, each as amended to date, or (B) violate applicable _________(STATE) General Corporation Law or any U.S. federal law or regulation applicable to the Company that, in our experience, is generally applicable to transactions in the nature of those contemplated in the Transaction Documents. ?
? 5. Assuming the accuracy of the representations and warranties of Purchaser and compliance by Purchaser with its agreements contained in the Transaction Documents, the issuance of the Shares does not violate, or require any authorization, consent, waiver or approval of any governmental authority or regulatory body of the State of _________ or the United States of America under, any law or regulation of the State of _________ or the United States of America applicable to the Company that, in our experience, is generally applicable to transactions in the nature of those contemplated by the Transaction Documents, or the General Corporation Law of the State of _________(STATE), except for such authorizations, consents, waivers or approvals (i) as may be required under the Securities Act of 1933, as amended (the Securities Act ), the Securities Exchange Act of 1934, as amended, or by the _________(CITY) Stock Exchange, (ii) as may be required under any state securities or Blue Sky laws, (iii) as may be contemplated by the Registration Rights Agreement, (iv) as already have been obtained or will be obtained prior to the closing of the offer and sale
of the Shares or (v) that, if not made or obtained, would not have a Material Adverse Effect. ?
? 6. Assuming the truth and accuracy of each of the representations and warranties of Purchaser set forth in the Purchase Agreement, and in reliance thereon without any independent investigation by us, and compliance by Purchaser with its agreements contained in the Purchase Agreement, no registration of the Shares under the Securities Act is required for the sale and delivery of the Shares to Purchaser on the date hereof, it being understood that we express no opinion on the resale of the Shares. Opinions to be given by general counsel to the Company ?
? 7. The Company has the corporate power and authority to conduct its business as presently conducted by it and there are no jurisdictions in which, to my knowledge, the nature of the Company’s properties or the transaction of its business, makes the Company’s qualification to do business as a foreign corporation necessary, except for those jurisdictions in which the Company is qualified, to my knowledge, to do business as a foreign corporation or those jurisdictions in which failure to be so qualified would not have a Material Adverse Effect. ?
? 8. To my knowledge, the Shares are free and clear of all liens, charges, restrictions, claims and encumbrances imposed by or through the Company. ?
? 9. The execution and delivery of the Transaction Documents and the performance by the Company of its obligations thereunder, do not (A) violate, conflict with or constitute a default under any material contract, commitment, trust or agreement of any kind known to me to which the Company is a party or by which it is bound or (B) t...