Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions: (a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule. (b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A. (c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date. (d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole. (e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus. (f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters. (g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters. (h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel. (i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto. (j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance. (k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby. (l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering. (m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 4 contracts
Sources: Underwriting Agreement (Medalist Diversified REIT, Inc.), Underwriting Agreement (Medalist Diversified REIT, Inc.), Underwriting Agreement (Medalist Diversified REIT, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Transaction Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement Agreement, and any material required to be filed by the Company pursuant to Rule 433(d) of under the Rules Securities Act shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to filed with the Commission for filing pursuant to Rule 424(b) within the prescribed time period (without reliance on Rule 424(b)(8)) and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d3(e) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall not have reasonably determined, and advised the Company, that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto contains any untrue statement of fact which, in the Representative’s reasonable opinion, is material, or omits to state a fact which, in the Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(e) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (ix) the General Disclosure Package, nor (iiy) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) the Transaction Securities (other than the Pre-Funded Warrants) and the Warrant Shares have been approved for listing on The NASDAQ Capital Market; (v) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (vvi) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus there has not occurred been any material adverse change Material Adverse Effect or any event that is reasonably likely to result in a Material Adverse Effect, whether or not arising from transactions in the assets, properties, condition, financial or otherwise, or in the results ordinary course of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholebusiness.
(ef) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the secretary of the Company to the effect that: (i) attached to such certificate is a true and complete copy of the certificate of incorporation of the Company, together with all amendments thereto, and that such certificate of incorporation has not been modified since the date shown on the attached certificate of incorporation and such certificate of incorporation is in full force and effect as of the date thereof; (ii) attached to such certificate is a true and complete copy of the bylaws of the Company, together with all amendments thereto, and that such bylaws have not been modified since the date shown on the attached bylaws and such bylaws are in full force and effect as of the date thereof; (iii) attached to such certificate are true, complete and correct copies of the resolutions duly and validly adopted by the board of directors of the Company approving and authorizing the Offering, that such resolutions have not been amended, suspended, modified, rescinded or revoked, and remain in full force and effect as of the date thereof, and such resolutions are the only resolutions adopted by the Company’s board of directors relating to the Offering; (iv) attached to such certificate are true and correct certificates of good standing or equivalent certificates of the Company and its subsidiaries in such jurisdictions as the Representative shall reasonably request; and (v) such officer certifies the signatures of the officers of the Company executing documents in connection with the transactions contemplated by this Agreement and the signatures appearing opposite their respective names are the true and genuine signatures of such officers as of the date thereof.
(g) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and Statement, the General Disclosure PackagePackage or the Prospectus, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(fh) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇T▇▇▇▇▇▇▇ & F▇H▇▇▇ PLCLLP, as counsel to the Company, and addressed to the Underwriters, in form and substance reasonably satisfactory to counsel for the Underwriters.
(gi) On each Closing Date, the Representative there shall have received been furnished to the favorable tax opinionUnderwriters the negative assurance letter of H▇▇▇▇▇ ▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, as counsel to the Underwriters, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for and addressed to the CompanyUnderwriters, in form and substance reasonably satisfactory to counsel for the Underwriters.
(hj) All proceedings taken Each item required to be delivered in connection accordance with the sale of the Firm Shares and the Option Shares as herein contemplated this Section 3 shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements in form and substance reasonably satisfactory to counsel for the Underwriters executed by each entity or person listed on Schedule IV III hereto.
(jl) The Transaction Securities (other than the Pre-Funded Warrants) and the Warrant Shares shall have been approved for listing on The NASDAQ Capital Market and satisfactory evidence of such action shall have been provided to the Representative. The Company shall have taken no action designed to, or likely to have the effect of terminating the registration of the Common Stock and Warrants under the Exchange Act or delisting or suspending from trading the Transaction Securities (other than the Pre-Funded Warrants) or the Warrant Shares from The NASDAQ Capital Market, subject only to official notice of issuancenor has the Company received any information suggesting that the Commission or The NASDAQ Capital Market is contemplating terminating such registration or listing. The Transaction Securities and the Warrant Shares shall be DTC eligible.
(km) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) long-term debt of the Transaction EntitiesCompany or its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or and the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or affairs, business prospects or stockholders’ equity of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Transaction Securities as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to the Representative or to counsel to the Underwriters pursuant to this Section 3 shall not be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters, then the obligations of the Underwriters to consummate the Closing hereunder may be cancelled by the Representative at, or at any time prior to, the consummation of the Closing. Notice of such cancellation shall be given to the Company in writing or orally. Any such oral notice will be confirmed promptly thereafter by written, electronic or facsimile notice.
Appears in 3 contracts
Sources: Underwriting Agreement (Blue Sphere Corp.), Underwriting Agreement (Blue Sphere Corp.), Underwriting Agreement (Blue Sphere Corp.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiary considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On on each Closing DateDate from Loeb & Loeb LLP, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, and stating in form effect that:
(i) Each of the Company and substance reasonably satisfactory its subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and the United Kingdom, respectively. Each of the Company and its subsidiary is duly qualified to counsel transact business and is in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties or the nature of its business makes such qualification necessary, except where the failure to so qualify or to be in good standing, individually or in the aggregate, would not have a Material Adverse Effect.
(ii) Each of the Company and its subsidiary has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as now being conducted and as described in the Registration Statement, the Statutory Prospectus and the Prospectus and with respect to the Company to enter into and perform its obligations under this Agreement and to issue and sell the Shares.
(iii) The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration Statement, the Statutory Prospectus and the Prospectus under the caption “Capitalization” as of the dates stated therein and, since such dates, there has been no change in the capital stock of the Company except for subsequent issuances, if any, pursuant to this Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Statutory Prospectus and the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Statutory Prospectus and the Prospectus; all of the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable and none of them was issued in violation of any preemptive or other similar right. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid and nonassessable, and no holder of the Shares is or will be subject to personal liability by reason of being such a holder. Except as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus, the issuance and sale of the Shares by the Company is not subject to any preemptive or other similar rights of any securityholder of the Company. To the best of such counsel’s knowledge, except as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus, there are no preemptive or other rights to subscribe for or to purchase or any restriction upon the voting or transfer of any securities of the Company pursuant to the Company’s certificate of incorporation or by-laws or other governing documents or any agreements or other instruments to which the Company is a party or by which it is bound. To the best of such counsel’s knowledge, except as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue, any share of stock of the Company or any security convertible into, exercisable for, or exchangeable for stock of the Company. The Common Stock and the Shares conform in all material respects to the descriptions thereof contained in the Registration Statement, the Statutory Prospectus and the Prospectus. The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the certificate of incorporation or by-laws of the Company and the requirements of the NASDAQ Capital Market. To the best of such counsel’s knowledge, except as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus, there are no persons with registration rights or other similar rights to have any securities registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act.
(iv) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly authorized, executed and delivered by the Company and this Agreement constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles, and except as any rights to indemnification may be limited by public policy concerns.
(v) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) nor the execution, delivery or performance of any other agreement or instrument entered into or to be entered into by the Company in connection with the transactions contemplated by the Registration Statement, the Statutory Prospectus and the Prospectus will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company or its subsidiary pursuant to the terms of, any indenture, mortgage, deed trust, note or other agreement or instrument of which such counsel is aware and to which the Company or its subsidiary is a party or by which either the Company or its subsidiary or any of its assets or properties or businesses is bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation, domestic or foreign, of which such counsel is aware or violate any provision of the charter or by-laws of the Company or its subsidiary.
(vi) No consent, approval, authorization, license, registration, qualification or order of any court or governmental agency or regulatory body is required for the due authorization, execution, delivery or performance of this Agreement by the Company or the consummation of the transactions contemplated hereby or thereby, except such as have been obtained under the Securities Act and such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the several Underwriters.
(hvii) All proceedings taken To the best of such counsel’s knowledge, there is no any action, suit, proceeding or other investigation, before any court or before or by any public body or board pending or threatened against, or involving the assets, properties or businesses of, the Company which is required to be disclosed in connection with the sale of Registration Statement, the Firm Shares Statutory Prospectus and the Option Shares as herein contemplated shall Prospectus and is not so disclosed or which could reasonably be reasonably satisfactory in form and substance expected to the Representative and their counselhave a Material Adverse Effect.
(iviii) The Representative shall have received statements in the Statutory Prospectus and the Prospectus under the captions “Description of Capital Stock,” “Business – Legal Proceedings,” and “Certain Transactions,” and in the Registration Statement under Item 15 of Part II, insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate in all material respects and accurately present the information with respect to such documents and matters. Accurate copies of all contracts and other documents known to such counsel and required to be filed as exhibits to, or described in, the Lock-up Agreements executed by each entity Registration Statement have been so filed with the Commission or person listed on Schedule IV heretoare fairly described in the Registration Statement, as the case may be.
(jix) The Registration Statement, all Preliminary Prospectuses (including the Statutory Prospectus) and the Prospectus and each amendment or supplement thereto (except for the financial statements and schedules and other financial data included therein, as to which such counsel expresses no opinion) comply as to form in all material respects with the requirements of the Securities Act and the Rules, all Preliminary Prospectuses (including the Statutory Prospectus) and the Prospectuses and any further amendment or supplement to any such incorporated document made by the Company (except for the financial statements and schedules and other financial data included therein, as to which such counsel expresses no opinion) when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder.
(x) The Registration Statement is effective under the Securities Act, and to such counsel’s knowledge no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened, pending or contemplated. Any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by such Rule 424(b).
(xi) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(kxii) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the The capital stock of the Company or any conforms in all material change respects to the description thereof contained in the indebtedness Statutory Prospectus and the Prospectus under the caption “Description of Capital Stock.”
(xiii) The Company is not an “investment company” or an entity controlled by an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended. To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representatives as to matters which are governed by laws other than in the ordinary course of business) laws of the Transaction Entities, (ii) except as set forth or contemplated by the Registration StatementState of New York, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings Corporation Law of the Transaction Entities, (iii) no loss or damage (whether or not insured) to State of Delaware and the property Federal laws of the Transaction Entities United States; provided that such counsel shall have been sustained state that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting in their opinion the Transaction Entities or any Underwriters and they are justified in relying on such other opinions. Copies of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement such certificates and other opinions shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative Representatives and counsel for the Underwriters. In addition, such further customary certificates or documents as the Representative counsel shall have reasonably requested.state that s
Appears in 3 contracts
Sources: Underwriting Agreement (Coronado Biosciences Inc), Underwriting Agreement (Coronado Biosciences Inc), Underwriting Agreement (Coronado Biosciences Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The Representative shall be satisfied that (i) the representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date; (ii) since the Effective Date, no event as occurred that should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment and (iii) since the respective dates as of which information is given in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, there has not been any material adverse change or any development involving a prospective material adverse change in the business, properties, financial condition or results of operations of the Company, and since such dates, the Company has not entered into any material transaction not referred to in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously received a certificate on each Closing Date signed by the Secretary of the Company to the effect that, as of the Closing Date the Secretary certifies as to the accuracy of the Company's charter and bylaws, the resolutions of the Board of Directors relating to the offering contemplated hereby, the form of stock certificate representing the Shares, and copies of all communications with the execution of this Agreement a signed letter from the Auditor addressed Commission; as to the Representative execution and dated the date delivery of this Agreement; as to the incumbency and signature of persons signing this Agreement, the Registration Statement and other related documents; as to the approval of the Shares for listing on the Nasdaq National Market; as to the Company's compliance with all agreements and performance or satisfaction of all conditions required hereunder; as to the consideration received for all outstanding shares of the Company's Common Stock; and as to such other matters as Underwriters' counsel may reasonably request.
(f) The Representative shall have been furnished evidence in the usual written or electronic form and substance reasonably from the appropriate authorities of the several jurisdictions, or other evidence satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to good standing and qualifications of the financial statements Company.
(g) The Representative shall have received, at the time this Agreement is executed and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, Date a signed letter from the Auditor Schechter Dokken Kanter Andrews & Selcer Ltd. addressed to the Representative Represe▇▇▇▇▇▇▇ ▇n▇ ▇▇▇▇d, ▇▇▇▇e▇▇▇▇▇▇▇, t▇▇ ▇▇▇e of this Agreement and dated the date of each such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(fh) On each Closing Date, the The Representative shall have received a copy of a letter from Schechter Dokken Kanter Andrews & Selcer Ltd. addressed to the favorable opinionCompany, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇that their rev▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler Cthe ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCny's internal accounting controls, as tax counsel for to the extent they deemed necessary in establishing the scope of their examination of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection 's financial statements filed with the sale of the Firm Shares Registration Statement and the Option Shares as herein contemplated shall Prospectus, did not disclose any weakness in internal controls that they considered to be reasonably satisfactory in form and substance to the Representative and their counselmaterial weaknesses.
(i) The Representative shall have received copies on each Closing Date from Lewis and Roca LLP, counsel for the Company, an opinion, addressed to ▇▇▇ ▇epresentative and dated such Closing Date, and stating in effect that:
(i) Each of the Lock-up Agreements executed by Company and its subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation. Each of the Company and its subsidiary is duly qualified to transact business and is in good standing as a foreign corporation in each entity jurisdiction in which the character or person listed on Schedule IV heretolocation of its assets or properties or the nature of its business makes such qualification necessary, except where the failure to so qualify or to be in good standing, individually or in the aggregate, would not have a Material Adverse Effect.
(jii) The Shares shall have been approved for listing on Each of the NASDAQ Capital MarketCompany and its subsidiary has all requisite corporate power and authority to own, subject only lease and operate its properties and to official notice of issuanceconduct its business as now being conducted and as described in the Registration Statement and the Prospectus and with respect to the Company to enter into and perform its obligations under this Agreement and to issue and sell the Shares.
(kiii) Subsequent to The authorized, issued and outstanding capital stock of the execution and delivery of this Agreement or, if earlier, the dates Company is as of which information is given set forth in the Registration StatementStatement and the Prospectus under the caption "Capitalization" as of the dates stated therein and, the General Disclosure Package or the Prospectus: (i) since such dates, there shall not have has been any material no change in the capital stock of the Company except for subsequent issuances, if any, pursuant to this Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Prospectus; all of the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable and none of them was issued in violation of any preemptive or other similar right. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid and nonassessable, and no holder of the Shares is or will be subject to personal liability by reason of being such a holder. The issuance and sale of the Shares by the Company is not subject to any preemptive or other similar rights of any securityholder of the Company. Except as disclosed in the Registration Statement and the Prospectus, there are no preemptive or other rights to subscribe for or to purchase or any material change restriction upon the voting or transfer of any securities of the Company pursuant to the Company's Articles of Incorporation or by-laws or other governing documents or any agreements or other instruments to which the Company is a party or by which it is bound. Except as disclosed in the indebtedness (Registration Statement and the Prospectus, there is no outstanding option, warrant or other than right calling for the issuance of, and no commitment, plan or arrangement to issue, any share of stock of the Company or any security convertible into, exercisable for, or exchangeable for stock of the Company. The Common Stock, and the Shares conform in all material respects to the descriptions thereof contained in the ordinary course Registration Statement and the Prospectus. The form of business) certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Transaction EntitiesArticles of Incorporation or By-laws of the Company and the requirements of the Nasdaq National Market. There are no persons with registration rights or other similar rights to have any securities registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act.
(iv) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, (ii) delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly authorized, executed and delivered by the Company and this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as set forth such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
(v) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) nor the execution, delivery or performance of any other agreement or instrument entered into or to be entered into by the Company in connection with the transactions contemplated by the Registration StatementStatement and the Prospectus will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company or any Subsidiary pursuant to the terms of, any indenture, mortgage, deed trust, note or other agreement or instrument to which the Company or its subsidiary is a party or by which either the Company or its subsidiary or any of their assets or properties or businesses is bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation, domestic or foreign, of which such counsel is aware, including but not limited to the Nevada Gaming Control Act and the rules and regulations promulgated thereunder (the "Nevada Gaming Laws") or orders or decrees issued by any governmental authority which interprets or implements the Nevada Gaming Laws, or violate any provision of the charter or by-laws of the Company or its subsidiary.
(vi) No consent, approval, authorization, license, registration, qualification or order of any court, governmental, gaming or other regulatory agency or body is required for the due authorization, execution, delivery or performance of this Agreement by the Company or the consummation of the transactions contemplated hereby or thereby, except such as have been obtained under the Nevada Gaming Laws, the General Disclosure Package Securities Act and such as may be required under state securities or Blue Sky laws in connection with the Prospectuspurchase and distribution of the Shares by the several Underwriters.
(vii) Under the Nevada Gaming Laws, no material oral Underwriter is required, solely by reason of and as a condition to its execution and delivery of this Agreement, nor is any purchaser of Common Stock from the Underwriters in connection with the offering contemplated by this Agreement required, solely by reason of being such, to be found suitable or written agreement licensed by any governmental agency or authority that adopts, enforces, supervises, implements or interprets the Nevada Gaming Laws.
(viii) To the best of such counsel's knowledge, there is no action, suit, proceeding or other transaction shall have been entered into investigation, before any court or before or by any public body or board pending or threatened against, or involving the Transaction Entities that assets, properties or businesses of, the Company which is required to be disclosed in the Registration Statement and the Prospectus and is not in the ordinary course of business so disclosed or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or which could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lix) On The statements in the Firm Prospectus under the captions "Risk Factors -- Failure of the Nevada Gaming Commission to adopt regulations under the Nevada Mobile Gaming Law in the near future will preclude us from implementing our growth strategy," "Risk Factors -- Our failure to obtain licenses and approvals under the regulations promulgated under the Nevada Mobile Gaming Law will preclude us from implementing our growth strategy," "Risk Factors -- Our failure to obtain gaming licenses or other regulatory approvals in other jurisdictions would preclude us from expanding our operations," "Risk Factors -- Our failure to maintain our current licenses and regulatory approvals or failure to maintain or obtain licenses or approvals for our gaming devices in any jurisdiction will prevent us from operating in this, and possible other jurisdictions," "Risk Factors -- Our failure to comply with tribal regulation and tribal laws will preclude us from operating in tribal jurisdictions," "Risk Factors -- The closing of this offering is conditioned upon our receipt of the approval of the Nevada gaming authorities," "Description of Capital Stock," "Business -- Government Regulations," "Business -- Legal Proceedings," "Shares Closing DateEligible for Future Sale" and "Certain Relationships and Related Transactions," insofar as such statements constitute a summary of documents referred to therein or matters of law, FINRA shall have confirmed that it has not raised any objection are accurate in all material respects and accurately present the information with respect to such documents and matters. Accurate copies of all contracts and other documents required to be filed as exhibits to, or described in, the fairness and reasonableness of the underwriting terms and agreements in connection Registration Statement have been so filed with the OfferingCommission or are fairly described in the Registration Statement, as the case may be.
(mA) The Each of the Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.an
Appears in 3 contracts
Sources: Underwriting Agreement (Fortunet, Inc.), Underwriting Agreement (Fortunet, Inc.), Underwriting Agreement (Fortunet, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the any certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have such person has carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their such person’s opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i1) the General Disclosure Package, nor (ii2) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Prospectus, provided, that such letters delivered on the Firm Shares Closing Date and as of each Option Shares Closing Date (if any), shall use a “cut-off” date no more than two business days prior to the Firm Shares Closing Date and each Option Shares Closing Date (if any).
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇▇ Voekler C▇▇& ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as counsel for the Company, an opinion and negative assurance letter, addressed to the CompanyRepresentative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersReserved.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 2 contracts
Sources: Underwriting Agreement (Oncternal Therapeutics, Inc.), Underwriting Agreement (Oncternal Therapeutics, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several hereunder to purchase and not joint. The respective obligations pay for the Shares shall be subject to the accuracy of the Underwriters to purchase the Shares are subject to each representations and warranties of the Company set forth herein as of the Closing Date and any Option Closing Date, as the case may be, to the accuracy of the statements of the Company’s directors and officers, to the performance by the Company of its obligations hereunder and to the following terms and additional conditions, except to the extent expressly waived in writing by the Representative:
(a) Notification that If the Registration Statement registration statement as amended to date has not become effective prior to the execution of this Agreement, such registration statement shall have been received declared effective not later than 11:00 a.m., Washington, D.C. time, on the date of this Agreement or such later date and/or time as shall have been consented to by the Representative and in writing. If required, the Prospectus and any amendment or supplement thereto shall have been timely filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing and in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall be in effect have been issued and no proceedings for such that purpose shall be pending before or have been instituted, threatened or, to the knowledge of the Company and the Underwriter, contemplated by the Commission, ; and any all requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date’s satisfaction.
(db) The Representative shall have received on a copy of an executed lock-up agreement from the Company and each of the Company’s and its direct and indirect subsidiaries’ executive officers and directors and certain shareholders of Common Stock, in the form attached hereto as Exhibit A.
(c) The Representative shall have received an opinion, dated as of the Closing Date a certificateand any Option Closing Date, addressed of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A., special counsel for the Company, in form and substance satisfactory to the Representative and dated such Closing Datethe Underwriters’ counsel, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: :
(i) the representations, warranties and agreements Each of the Company and its direct and indirect subsidiaries has been duly incorporated or organized, is validly existing and is in good standing under the laws of its jurisdiction of incorporation or organization and has full power and authority (corporate and otherwise) to own or lease its properties and conduct its business as described in the Prospectus. The Company is duly registered under the Bank Holding Company Act of 1956, as amended. The Company has full power and authority (corporate and otherwise) to enter into this Agreement were true and correct when made to perform its obligations hereunder. No proceeding has been instituted in any jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and are true and correct as of such Closing Date; authority.
(ii) All of the issued shares of capital stock of the Company, including the Shares to be sold by the Company pursuant hereto when delivered against payment therefor as contemplated hereby, have been duly authorized and validly issued, are fully paid and nonassessable and conform to the descriptions of the Common Stock contained in the Prospectus, and the holders thereof will not be subject to personal liability solely by reason of being such holders. None of the issued shares of capital stock of the Company or any of its direct or indirect subsidiaries has been issued or is owned or held in violation of any statutory or other preemptive rights of shareholders, and no person or entity (including any holder of outstanding shares of capital stock of the Company or its direct or indirect subsidiaries) has any statutory or other preemptive or other rights to subscribe for any of the Shares. None of the capital stock of the Company has performed been issued in violation of applicable federal or state securities laws. The certificates representing the Shares are in proper legal form under, and conform in all respects to the requirements of, the Florida Business Corporation Act and the requirements of the Nasdaq SmallCap Market.
(iii) All of the issued shares of capital stock of each of the Company’s direct and indirect subsidiaries, specifically the Banks, have been duly authorized and validly issued, are fully paid and nonassessable and are owned beneficially by the Company or one of its subsidiaries, and, free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders’ agreements, voting agreements, proxies, voting trusts, equities or claims of any nature whatsoever (collectively, “Encumbrances”), including, without limitation, any Encumbrance arising or resulting from any indenture, mortgage, deed of trust, loan agreement, lease or other agreement of or entered into by the Company or the Banks. Other than the outstanding capital stock of the Banks and the equity securities held in the investment portfolios of the Company and such subsidiaries (the composition of which is not materially different from the disclosures in the Prospectus as of specific dates), the Company does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association.
(iv) Except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of its direct or indirect subsidiaries convertible into or exchangeable for any capital stock of the Company or any of its direct or indirect subsidiaries, (ii) warrants, rights or options to subscribe for or purchase from the Company or any of its direct or indirect subsidiaries any such capital stock or any such convertible or exchangeable securities or obligations or (iii) obligations of the Company or any of its direct or indirect subsidiaries to issue any shares of capital stock, any such convertible or exchangeable securities or obligations, or any such warrants, rights or options.
(v) There are no contracts, agreements or understandings known to such counsel between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or requiring the Company to include such securities in the securities registered pursuant to the Registration Statement (or any such right has been effectively waived) or requiring the registration of any securities pursuant to any other registration statement filed by the Company under the Securities Act. Neither the filing of the Registration Statement nor the offering or sale of Shares as contemplated by this Agreement gives any security holder of the Company any rights for or relating to the registration of any shares of Common Stock or any other capital stock of the Company, except such that have been satisfied or waived.
(vi) The sale of the Shares and the performance of this Agreement and the consummation of the transactions herein contemplated will not (with or without the giving of notice or the passage of time or both) (i) conflict with or violate any term or provision of the Articles of Incorporation or By-Laws or comparable charter documents of the Company or any of its direct or indirect subsidiaries, in each case as amended to date, (ii) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company or any of its direct or indirect subsidiaries is a party or to which any of their respective properties or assets is subject, (iii) conflict with or violate any law, statute, rule or regulation or any order, judgment or decree of any court or governmental agency or body having jurisdiction over the Company or any of its direct or indirect subsidiaries or any of their respective properties or assets, or (iv) result in a breach, termination or lapse of the corporate power and authority of the Company or any of its direct or indirect subsidiaries to own or lease and operate their respective assets and properties and conduct their respective business as described in the Prospectus.
(vii) No consent, approval, authorization, order or declaration of or from, or registration, qualification or filing with, any court or governmental agency or body is required for the sale of the Shares or the consummation of the transactions contemplated by this Agreement, except the registration of the Shares under the Securities Act and of the Common Stock under the Exchange Act and such as may be required by the NASD or under state securities or blue sky laws in connection with the offer, sale and distribution of the Shares by the Underwriters.
(viii) To such counsel’s knowledge and other than as disclosed in the Prospectus, there is no litigation, arbitration, claim, proceeding (formal or informal) or investigation (including without limitation, any bank or bank holding company regulatory proceeding) pending or threatened in which the Company or any of its direct or indirect subsidiaries is a party or of which any of their respective properties or assets are the subject which, if determined adversely to the Company or any of its direct or indirect subsidiaries, would individually or in the aggregate have a material adverse effect on the condition (financial or otherwise), business, prospects, assets, properties, results of operations or net worth of the Company and its subsidiaries taken as a whole. Neither the Company nor any direct or indirect subsidiary is in violation of, or in default with respect to, any law, statute, rule, regulation, order, judgment or decree, except as described in the Prospectus or such as do not and will not individually or in the aggregate have a material adverse effect on the condition (financial or otherwise), business, prospects, assets, properties, results of operations or net worth of the Company and its subsidiaries taken as a whole, and neither the Company nor any direct or indirect subsidiary is required to take any action in order to avoid any such violation or default.
(ix) This Agreement has been duly authorized, executed and delivered by the Company and, assuming due execution by the Representative, constitutes the valid and binding agreement of the Company, enforceable against the Company, in accordance with its terms, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws relating to or affecting the enforcement of creditors’ rights generally and to general equitable principles and except as the enforceability of rights to indemnity and contribution under this Agreement may be limited under applicable securities laws or the public policy underlying such laws.
(x) Neither the Company nor any of its direct or indirect subsidiaries is, or with the giving of notice or passage of time or both would be, in violation of its Articles of Incorporation or By-Laws (or comparable charter documents).
(xi) Bank of Florida, N.A. and Bank of Florida are members in good standing of the Federal Reserve System and their deposits are insured by the Federal Deposit Insurance Corporation up to the legal limits.
(xii) Neither the Company nor any of its direct or indirect subsidiaries is an “investment company” or a company “controlled” by an investment company as such terms are defined in Sections 3(a) and 2(a)(9), respectively, of the Investment Company Act, and, if the Company or any of its direct or indirect subsidiaries conducts its business as set forth in the Registration Statement and the Prospectus, will not become an “investment company” and will not be required to register under the Investment Company Act.
(xiii) The Registration Statement and the Prospectus and each amendment or supplement thereto (other than the financial statements, the notes and schedules thereto and other financial data included therein, to which such counsel need express no opinion), as of their respective effective or issue dates, complied as to form in all material respects all covenants with the requirements of the Securities Act and agreements the respective rules and satisfied all conditions contained herein; regulations thereunder.
(iiixiv) The Registration Statement was declared effective under the Securities Act as of the date and time specified in such opinion, and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings therefor have been initiated or, to such counsel’s knowledge, threatened by the Commission. Such counsel shall also state that they have carefully examined participated in the preparation of the Registration Statement and the Prospectus and in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of and counsel to the Underwriters at which the contents of the Registration Statement, the Prospectus, the General Disclosure Package, Prospectus and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date related matters were discussed and nothing has come to such counsel’s attention to lead them to believe that the Registration Statement and Prospectus did not includeStatement, or any further amendment thereto made prior to the Closing Date or Option Closing Date, as applicable, on its effective date and as of the Applicable TimeClosing Date or Option Closing Date, neither (i) the General Disclosure Packageas applicable, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, contained or contains any untrue statement of a material fact and did not omit or omitted or omits to state a any material fact required to be stated therein or necessary to make the statements therein, not misleading, or that the Prospectus, or any amendment or supplement thereto made prior to the Closing Date or Option Closing Date, as applicable, as of its issue date and as of Closing Date or Option Closing Date, as applicable, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and misleading (B) since provided that such counsel need express no belief regarding the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statementfinancial statements, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; notes and (v) there has not occurred any material adverse change in the assets, properties, condition, schedules thereto and other financial or otherwise, or in the results of operations, business affairs or business prospects (as described data contained in the Registration Statement, any amendment thereto, or the General Disclosure Package Prospectus, or any amendment or supplement thereto). In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of officers of the Company, public officials and letters from officials of the NASD. Copies of such certificates of officers of the Company and other opinions shall be addressed and furnished to the Underwriters and furnished to counsel for the Underwriters. Such opinion may be relied upon by counsel for the Underwriters as to matters involving the application of laws of the State of Florida in connection with the opinion of such counsel for the Underwriters referred to in Section 7(d).
(d) ▇▇▇▇▇▇▇ Spidi & ▇▇▇▇▇, PC, counsel for the Underwriters, shall have furnished to the Representative such opinion or opinions, dated as of the Closing Date and any Option Closing Date, with respect to such matters as the Representative may reasonably request, and the Prospectus) Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinions, such counsel may rely as to matters involving the application of laws of the Transaction Entities and their Subsidiaries considered as a wholeState of Florida on the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A. referred to in Section 7(c).
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter received from the Auditor addressed to the Representative and dated the date of this AgreementKPMG LLP, independent public accountants, in form and substance reasonably satisfactory to the Representative, letters dated as of the date hereof, the Closing Date and any Option Closing Date, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters Underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and Prospectus; provided that the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated as of the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information delivery of the type ordinarily included in accountants’ Firm Shares shall use a “comfort letterscut-off date” to underwriters with respect to not earlier than the financial statements and certain financial information contained in the Registration Statement and the Prospectusdate hereof.
(f) On each Closing Date, Since the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale date of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory latest audited financial statements included in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral neither the Company nor any of its direct or written agreement or other transaction indirect subsidiaries shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a sustained any material reduction in the future earnings of the Transaction Entitiesadverse change, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as development involving a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.pros
Appears in 2 contracts
Sources: Underwriting Agreement (Bancshares of Florida Inc), Underwriting Agreement (Bancshares of Florida Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Units are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, Prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, Prospectus and the General Disclosure Package, and any individual Issuer Free Writing Prospectus Package and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, includedPackage did not include, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries Company considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇▇▇▇ Voekler C& ▇▇▇▇▇▇, LLP, counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, in a customary form reasonably acceptable to the Representatives.
(g) The Representatives shall have received on each Closing Date from ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCTraurig, as LLP, counsel for the Representatives, an opinion, addressed to the CompanyRepresentatives and dated such Closing Date, in form and substance reasonably satisfactory acceptable to the Representatives, and such counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. To the favorable tax opinionextent deemed advisable by such counsel, dated such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representatives as to matters which are governed by laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the Federal laws of the United States; provided that such counsel shall state that in their opinion the Underwriters and they are justified in relying on such other opinions. Copies of such Closing Datecertificates and other opinions shall be furnished to the Representatives. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form representatives of the Representatives and substance reasonably satisfactory to representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the Underwritersaccuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus (except as specified in the foregoing opinion), on the basis of the foregoing, no facts have come to the attention of such counsel which lead such counsel to believe that (i) the Registration Statement at the time it became effective (except with respect to the financial statements and notes and schedules thereto and other financial data, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus as amended or supplemented (except with respect to the financial statements, notes and schedules thereto and other financial data, as to which such counsel need make no statement) on the date thereof and as of the date hereof contained or contains any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (ii) the Statutory Prospectus, when considered together with the price to the public and the number of Units as set forth on the cover page of the Prospectus, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading.
(h) All proceedings taken in connection with the sale of the Firm Shares Units and the Option Shares Units as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counsel.
(i) The Representative Company shall have received delivered to the Representatives executed copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV heretoTrust Agreement, the Warrant Agreement, the Forward Purchase Agreement, the Stock Escrow Agreement, the Cash Escrow Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration Rights Agreement, the Business Combination Marketing Agreement and the Administrative Services Agreement.
(j) The Shares shares of Common Stock, Units and Warrants shall have been approved for listing on the NASDAQ Capital MarketNasdaq, subject only to official notice of issuance.
(k) Subsequent to The Representatives shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties Company that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (viv) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares Units as contemplated hereby.
(l) On Prior to the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Units.
(m) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
(n) The Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account,
Appears in 2 contracts
Sources: Underwriting Agreement (Pure Acquisition Corp.), Underwriting Agreement (Pure Acquisition Corp.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representative, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, Prospectus and the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, includedPackage did not include, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Disclosure PackageProspectus, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Prospectus, provided, that such letter delivered on the Firm Shares Closing Date and as of each Option Shares Closing Date (if any), shall use a “cut-off” date no more than two business days prior to the Firm Shares Closing Date and each Option Shares Closing Date (if any).
(f) On each Closing Date, the The Representative shall have received the favorable opinionon each Closing Date from Akerman LLP, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to for the Company, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇ Voekler C▇▇▇& ▇▇▇▇▇▇ & F▇▇▇▇ PLCL.L.P., as tax Nevada local counsel for the Company, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from ▇▇▇▇▇ ▇▇▇▇▇ Zedek ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, intellectual property counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to the Representative.
(i) The Representative shall have received on each Closing Date from White & Case LLP, counsel for the Representative, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to the Representative.
(j) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jl) The Shares shall have been approved for listing on the NASDAQ The Nasdaq Capital Market, subject only to official notice of issuance.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(ln) On or before the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mo) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Firm Shares Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares.
(p) The Representative shall have received on or prior to each Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as a foreign entity in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(q) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents (including a Secretary’s Certificate) as the Representative shall have reasonably requested.
Appears in 2 contracts
Sources: Underwriting Agreement (Ondas Holdings Inc.), Underwriting Agreement (Ondas Holdings Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d3(e) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have reasonably determined, and advised the Company, that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto contains an untrue statement of fact which, in the Representative’s reasonable opinion, is material, or omits to state a fact which, in the Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(e) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus there has not occurred been any material adverse change Material Adverse Effect or any event that is likely to result in a Material Adverse Effect, whether or not arising from transactions in the assets, properties, condition, financial or otherwise, or in the results ordinary course of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholebusiness.
(ef) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor and M▇▇▇▇▇ LLP addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor and M▇▇▇▇▇ LLP addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(fg) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇Fulbright & J▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(gh) On each Closing Date, the Representative shall have received the favorable tax intellectual property legal opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax from intellectual property legal counsel for to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(hi) On each Closing Date, there shall have been furnished to the Underwriters the negative assurance letter of H▇▇▇▇▇ ▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, counsel to the Underwriters, dated such Closing Date, as applicable, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(j) All proceedings taken in connection with the sale of the Firm Shares Securities and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements in form and substance reasonably satisfactory to counsel for the Underwriters executed by each entity or person listed on Schedule IV III hereto.
(jl) The Shares Securities shall have been approved for listing on the NASDAQ Capital Market and satisfactory evidence of such action shall have been provided to the Representative. The Company shall have taken no action designed to, or likely to have the effect of terminating the registration of the Common Stock and Warrants under the Exchange Act or delisting or suspending from trading the Common Stock and Warrants from the NASDAQ Capital Market, subject only to official notice nor has the Company received any information suggesting that the Commission or NASDAQ Capital Market is contemplating terminating such registration or listing. The Shares, the Warrants and shares of issuanceCommon Stock underlying the Warrants and Representative’s Warrants shall be DTC eligible.
(km) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany or its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(ln) On the Firm Shares Securities Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as required by this Agreement, the obligations of the Underwriters to consummate the Closing hereunder may be cancelled by the Representative after notice of such cancellation shall have be given to the Company in writing and the Company shall have been given a reasonable period of time to satisfy such condition (if such condition is capable of being satisfied).
Appears in 2 contracts
Sources: Underwriting Agreement (Applied Dna Sciences Inc), Underwriting Agreement (Applied Dna Sciences Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules) shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement shall be true and correct and the representations and warranties of the Company contained in the certificates delivered pursuant to Section 3(d) shall be true and correct in all material respects when made and on and as of each Closing Date as if made on such datedate (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects). The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative Underwriters and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in all material respects as of such Closing DateDate (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects); (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) (1) as of the Effective Date Date, the Registration Statement and did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (2) as of the date thereof or as of the date hereof, the Prospectus did not includecontain and does not contain any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (3) as of the Applicable Time, neither (ix) the General Disclosure Package, nor (iiy) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from each of the Auditor Auditors addressed to the Representative Underwriters and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from each of the Auditor Auditors addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler C▇Date from ▇▇▇▇▇▇▇▇ & F▇▇▇▇▇▇ PLCP.A., as counsel to for the Company, an opinion and negative assurance letter, addressed to the Underwriters and dated such Closing Date, substantially in the form attached hereto as Exhibit B (which shall be subject to customary assumptions, exceptions, limitations and substance reasonably satisfactory to counsel for the Underwritersqualifications).
(g) On each Closing Date, the The Representative shall have received the favorable tax opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler C▇Date from Pillsbury ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC▇▇▇▇▇▇▇ LLP, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, an opinion, addressed to the Representative and dated such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel such documents as they request for enabling them to pass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(k) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any subsidiary or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany or any of its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company or its subsidiaries that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company or any subsidiary shall have been sustained that had or could reasonably be expected to have a Material Adverse Effectbe material to the Company or any subsidiary, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company, any of its subsidiaries or any of their respective properties that is material to the Transaction Entities Company or any of its subsidiaries or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement and the obligation of the Underwriters to purchase the Firm Shares or Option Shares, as the case may be, may be terminated by the Underwriters by notice to the Company at any time at or prior to Closing Date, and, except for an intentional or willful breach of this Agreement, such termination shall be without liability of any party to any other party, except as provided by the Underwriters in Section 4(b); provided, however, that Sections 4(b), 5, 6, 7 and 9 shall survive any such termination and remain in full force and effect.
Appears in 2 contracts
Sources: Underwriting Agreement (Asure Software Inc), Underwriting Agreement (Asure Software Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representative, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, Prospectus and the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, includedPackage did not include, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Disclosure PackageProspectus, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Prospectus, provided, that such letter delivered on the Firm Shares Closing Date and as of each Option Shares Closing Date (if any), shall use a “cut-off” date no more than two business days prior to the Firm Shares Closing Date and each Option Shares Closing Date (if any).
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Akerman LLP, counsel for the favorable opinionCompany, an opinion and negative assurance letter, addressed to the Representative and dated as of such Closing Date, of KDate in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received on each Closing Date from ▇▇▇▇▇ Voekler C& ▇▇▇▇▇▇ ▇.▇.▇., Nevada local counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to the Representative.
(h) The Representative shall have received on each Closing Date from Akerman LLP, intellectual property counsel for Ondas Autonomous Systems Inc., a Nevada corporation, an opinion, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to the Representative.
(i) The Representative shall have received on each Closing Date from ▇▇▇▇▇ ▇▇▇▇▇ Zedek ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, intellectual property counsel for Ondas Networks Inc, a Texas corporation, an opinion, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to the Representative.
(j) The Representative shall have received on each Closing Date from Mintz, ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Fand ▇▇▇▇ PLC▇▇, as P.C., counsel for the Representative, an opinion and negative assurance letter, addressed to the CompanyRepresentative and dated such Closing Date in form and substance reasonably satisfactory to the Representative.
(k) The Representative shall have received on and as of (i) the date hereof and (ii) each Closing Date, a certificate of the chief financial officer of the Company confirming certain financial information included in the General Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(hl) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(im) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jn) The Shares shall have been approved for listing on the NASDAQ The Nasdaq Capital Market, subject only to official notice of issuance.
(ko) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lp) On or before the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mq) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Firm Shares Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares.
(r) The Representative shall have received on or prior to each Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as a foreign entity in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(s) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents (including a Secretary’s Certificate) as the Representative shall have reasonably requested.
Appears in 2 contracts
Sources: Underwriting Agreement (Ondas Holdings Inc.), Underwriting Agreement (Ondas Holdings Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in such capacity, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeCompany.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler C▇Date from Ellenoff ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCSchole LLP, as counsel for the Company, an opinion and written negative assurances statement, addressed to the CompanyRepresentative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative and its legal counsel.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler C▇▇Date from ▇▇▇▇▇▇▇ & Fand ▇▇▇▇▇▇ PLCLLP, as tax special intellectual property counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative and its legal counsel.
(h) The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, an opinion, addressed to the Representative and dated such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that materially affects or could reasonably be expected to materially affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable in the Representative’ ’s reasonable judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On As of the Firm Shares Closing Datedate hereof, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(o) The corporate conversion shall have been consummated (as described in the Registration Statement, Statutory Prospectus and Prospectus) and all rights and obligations of Dipexium Pharmaceuticals, LLC shall be assumed by the Company.
Appears in 2 contracts
Sources: Underwriting Agreement (Dipexium Pharmaceuticals, Inc.), Underwriting Agreement (Dipexium Pharmaceuticals, LLC)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares and the Warrants are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules) shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates certificate delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such the Closing Date.
(d) The Representative shall have received on each the Closing Date a certificate, addressed to the Representative and dated such the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such the Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, Package and any individual Issuer Free Writing Prospectus andProspectus, and in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentative , containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such the Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on the favorable opinionClosing Date from Disclosure Law Group, a Professional Corporation, counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated as of such the Closing Date, of Kin form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received on the Closing Date from R▇▇▇ ▇▇▇▇▇ Voekler C▇, Esq., intellectual property counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(h) The Representative shall have received on the Closing Date from L▇▇▇▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ PLCLLP, as counsel for the Representative, an opinion and negative assurance statement, addressed to the CompanyRepresentative and dated the Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Warrants as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ij) The On or prior to the execution and delivery of this Agreement, the Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent The Company shall have submitted a Notification Form: Listing of Additional Shares Application with the Nasdaq Capital Market with respect to the execution Shares and delivery Warrant Shares and the Nasdaq Capital Market shall have raised no objection with respect to the listing of this Agreement or, if earlier, the Shares and the Warrant Shares which has not been resolved to the reasonable satisfaction of the Representative on or before the Closing Date.
(l) The Representative shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares and the Warrants as contemplated hereby.
(lm) On or before the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares and the Warrants.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 2 contracts
Sources: Underwriting Agreement (VistaGen Therapeutics, Inc.), Underwriting Agreement (VistaGen Therapeutics, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become shall be effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430ARules 430A or 430B, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule Rules 430A or 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Rules 430A or 430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date, except for representations and warranties that speak solely as of an earlier date, which shall be true and correct as of such earlier date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive officer or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been but was not set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor ▇▇▇▇ ▇▇▇▇▇ addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor ▇▇▇▇ ▇▇▇▇▇ addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each TroyGould PC shall have furnished to the Underwriters such counsel’s written opinion and negative assurance statement, addressed to the Representative and dated the Closing Date or the Option Closing Date, as applicable, in substantially the Representative shall have received the favorable opinion, dated form attached hereto as of such Closing Date, of KExhibit B.
(g) ▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCScarborough LLP shall have furnished to the Underwriters, such counsel’s written opinion, as tax intellectual property counsel to the Company, addressed to the Representative and dated the Closing Date or the Option Closing Date, as applicable, in substantially the form attached hereto as Exhibit C.
(h) The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the CompanyRepresentative, in form an opinion, addressed to the Representative and substance dated such Closing Date, with respect to such matters as the Representative may reasonably satisfactory require, and the Company shall have furnished or provided access to such counsel of such documents as they request for the Underwritersenabling them to pass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares Securities and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ij) The Representative shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares and Warrant Shares shall have been approved for listing on the The NASDAQ Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth in or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(lm) On the Firm Shares Closing DateIf a filing has been made with FINRA, FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and agreements arrangements in connection with the Offeringissuance and sale of the Securities.
(mn) The Representative shall have received on each Closing Date a certificate addressed to the Representative and dated such Closing Date, of the Company’s Vice President, Regulatory Affairs and Compliance, in a form reasonably satisfactory to the Representative with respect to the regulatory affairs of the Company.
(o) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(p) The Company shall have duly and validly executed and delivered the warrant agreement in respect of the Warrants, which shall have been countersigned by the warrant agent in respect of the Warrants, and a copy of such warrant agreement shall have been delivered to the Representative (the “Warrant Agreement”).
Appears in 2 contracts
Sources: Underwriting Agreement (Galena Biopharma, Inc.), Underwriting Agreement (Galena Biopharma, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representative, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor each of P&M and CGC addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Disclosure PackageProspectus, and (ii) on each Closing Date, a signed letter from the Auditor each of P&M and CGC addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Prospectus, provided, that such letter delivered on the Firm Shares Closing Date and as of each Option Shares Closing Date (if any), shall use a “cut-off” date no more than two business days prior to the Firm Shares Closing Date and each Option Shares Closing Date (if any).
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler C▇Date from ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as counsel to for the Company, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇▇ Voekler C▇. ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax P.C., Colorado local counsel for the Company, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from White & Case LLP, counsel for the Representative, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On or before the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Firm Shares Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares.
(o) The Representative shall have received on or prior to each Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as a foreign entity in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(p) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents (including a Secretary’s Certificate) as the Representative shall have reasonably requested.
Appears in 2 contracts
Sources: Underwriting Agreement (GrowGeneration Corp.), Underwriting Agreement (GrowGeneration Corp.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or “free writing prospectus” (as defined in Rule 405 of the Rules), shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct in all material respects when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive officer or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in such capacity, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct in all material respects when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they such officers have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, Package and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not includeopinion, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus and which event is not described in the Registration Statement, the Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed bringdown letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from CKR Law LLP, counsel for the favorable opinionCompany, an opinion and written negative assurances statement, addressed to the Representative and dated as of such Closing Date, of Kin form and substance reasonably satisfactory to the Representative and its legal counsel.
(g) The Representative shall have received on each Closing Date from C▇▇▇▇ & G▇▇▇▇▇▇, intellectual property counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative and their legal counsel.
(h) The Representative shall have received on each Closing Date from Sichenzia R▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as tax counsel for the CompanyRepresentative, in form an opinion, addressed to the Representative and substance dated such Closing Date, with respect to such matters as the Representative may reasonably satisfactory require, and the Company shall have furnished or provided access to such counsel of such documents as they reasonably request for the Underwritersenabling them to pass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its legal counsel.
(ij) The Representative shall have received copies enforceable written lock-up agreements in the form attached to this Agreement as Exhibit A attached hereto (“Lock-Up Agreement”) executed by all directors, officers and holders of more than 5% of the Lock-up Agreements executed by each entity or person listed on Schedule IV heretooutstanding equity securities of the Company.
(jk) The Shares shall have been approved for listing on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance. A registration statement shall have been filed on Form 8-A pursuant to Section 12 of the Exchange Act, which registration statement shall comply in all material respects with the Exchange Act.
(kl) Subsequent to Since the execution and delivery date of this Agreement or, if earlier, the dates as most recent financial statements of which information is given the Company included in the Registration Statement, the General Disclosure Package or Package, the Statutory Prospectus and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, Company; (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could would reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, Company; (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to would have a Material Adverse Effect, ; (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that materially affects or could would reasonably be expected to materially affect the transactions contemplated by this Agreement shall have been instituted or threatened threatened; and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable in the Representative’ ’s reasonable judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On As of the Firm Shares Closing Datedate hereof, FINRA shall have confirmed that it has not raised any unresolved objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect the business or operations of the Company.
(o) As of each Closing Date, the Representative shall have received a certificate of the Company signed by the Secretary of the Company, certifying: (i) that the Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions relating to the Offering are in full force and effect and have not been modified; and (iii) as to the incumbency of the officers of the Company to execute and deliver this Agreement and the Registration Statement.
(p) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 2 contracts
Sources: Underwriting Agreement (Protea Biosciences Group, Inc.), Underwriting Agreement (Protea Biosciences Group, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the several Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares hereunder are subject to each the accuracy of the representations and warranties of the Company, Caribiner and the Selling Stockholders herein contained, to the performance by the Company, Caribiner and the Selling Stockholders of their respective obligations hereunder in all material respects, and to the following terms and further conditions:
(a) Notification that the The Registration Statement has shall have become effective shall have been received by not later than 5:30 P.M. on the Representative date hereof (and in the Prospectus shall have been timely filed case of the Rule 462(b) Registration Statement, if applicable, not later than 10:00 p.m. on the date hereof), or with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) consent of the Rules shall have been timely filed with Representatives, at a later time and date, not later, however, than 5:30 P.M. on the Commission first business day following the date hereof, or at such later time and date as may be approved by a majority in accordance with such rule.
(b) No order preventing or suspending interest of the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect Underwriters; and at Closing Time no stop order suspending the effectiveness of the Registration Statement shall be in effect and no have been issued under the 1933 Act or proceedings for such purpose shall be pending before or therefor initiated or, to the knowledge of the Company, threatened by the Commission, and any requests for additional information request on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) for additional information shall have been complied with to the reasonable satisfaction of counsel to the Commission and the RepresentativeUnderwriters. If the Company has and the Selling Stockholders have elected to rely upon Rule 430A430A or Rule 434 of the 1933 Act Regulations, Rule 430A the price of the Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A or Rule 434 shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period period, and prior to Closing Time, the Company shall have provided evidence satisfactory to the Underwriters Representatives of such timely filing, or a post-effective amendment providing such information shall have been filed as promptly filed as practicable and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of 430A under the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date1933 Act Regulations.
(db) At Closing Time, the Representatives shall have received:
(1) The Representative shall have received on each favorable opinion, dated as of Closing Date a certificate, addressed to the Representative and dated such Closing DateTime, of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇, LLP, special counsel for the chief executive or chief operating officer Company, Caribiner and the chief financial officer or chief accounting officer of Selling Stockholders, in form and substance reasonably satisfactory to counsel for the Company Underwriters, to the effect that: :
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the representations, warranties and agreements laws of the Company in this Agreement were true and correct when made and are true and correct as state of such Closing Date; Delaware.
(ii) the The Company has performed the corporate power and authority to own, lease and operate its properties and to conduct its business as described in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and the Prospectus did not includeand to enter into and perform its obligations under this Agreement and the Pricing Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing as a foreign corporation in each jurisdiction in which such qualification is required, and as whether by reason of the Applicable Timeownership or leasing of property or the conduct of business, neither (i) except where the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit failure so to state a material fact required qualify or to be stated therein or necessary to make the statements thereinin good standing would not have a Material Adverse Effect.
(iv) The authorized, in light issued and outstanding capital stock of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been Company is as set forth in the Prospectus under the caption "Capitalization" (except for subsequent issuances, if any, pursuant to this Agreement); the shares of issued and outstanding capital stock of the Company (including, without limitation, the Common Stock), including the Securities to be purchased by the Underwriters from the Selling Stockholders, have been duly authorized and validly issued and are fully paid and non-assessable; no holder of Common Stock is or will be subject to personal liability by reason of being such a supplement holder; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or otherwise required an amendment other similar rights, if any, of any stockholder or warrantholder of the Company arising by operation of law, under the charter or by-laws of the Company or any of its subsidiaries or, to the best of such counsel's knowledge, under any agreement to which the Company or any of its subsidiaries is a party.
(v) The Securities to be purchased by the Underwriters from the Company have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth in the Pricing Agreement, will be validly issued and fully paid and non-assessable and no holder of the Securities is or will be subject to personal liability by reason of being such a holder.
(vi) The issuance and sale of the Securities by the Company and the sale of the Securities by the Selling Stockholders are not subject to preemptive or other similar rights arising by operation of law or under the charter or by-laws of the Company or, to the best of such counsel's knowledge, any agreement to which the Company is a party.
(vii) Each of Caribiner, IHC and ETC (collectively, the "US Material Subsidiaries") has been duly incorporated and is validly existing as a corporation or limited liability company, as the case may be, in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and, in the case of Caribiner, to enter into and perform its obligations under this Agreement, and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not have a Material Adverse Effect; all of the issued and outstanding capital stock or limited liability company interests, as the case may be, of each such US Material Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned, by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, Encumbrances, claim or equity; and no holder of any capital stock of any subsidiary is or will be subject to personal liability by reason of being such a holder and none of such shares was issued in violation of the preemptive rights of any stockholder or warrantholder of such US Material Subsidiary arising by operation of law, under the charter or by-laws of such US Material Subsidiary or, to the best of such counsel's knowledge, under any agreement to which the Company or any US Material Subsidiary is a party.
(viii) Except as disclosed in or specifically contemplated by the Prospectus, to the best of such counsel's knowledge, there are no outstanding options, warrants or other rights calling for the issuance by the Company or any US Material Subsidiary of, and no commitments, obligations, plans or arrangements to which the Company or any US Material Subsidiary is a party to issue, any shares of capital stock of the Company or capital stock or limited liability company interests, as the case may be, of any US Material Subsidiary or any security convertible into or exchangeable for capital stock of the Company or capital stock or limited liability company interests, as the case may be, of any US Material Subsidiary.
(ix) To the best of such counsel's knowledge, except as disclosed in or specifically contemplated by the Prospectus, there are no persons with registration or other similar rights to have any securities registered pursuant to the Registration StatementStatement or otherwise registered by the Company under the 1933 Act; and, to the General Disclosure Package or best knowledge of such counsel, neither the Prospectusfiling of the Registration Statement nor the offering of the Securities as contemplated by this Agreement gives rise to any rights relating to the registration of any securities of the Company.
(x) Each of this Agreement and (in the case of the Company) the Pricing Agreement has been duly authorized, executed and delivered by the Company and Caribiner.
(xi) The Registration Statement is effective under the 1933 Act; (ivany required filing of the Prospectus pursuant to Rule 424(b) under the 1933 Act has been made in the manner and within the time period required by Rule 424(b), and, to the best of such counsel's knowledge and information, no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in 1933 Act or proceedings therefor initiated or threatened by the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeCommission.
(exii) The Representative shall have received: At the time the Registration Statement became effective and at the Representation Date, the Registration Statement and the Prospectus (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to other than the financial statements and certain supporting schedules, if any, and other financial information contained included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations; and, to the best of such counsel's knowledge, all material contracts, licenses, loan agreements, leases or other agreements or instruments which are required to be described in or filed as exhibits to the Registration Statement by the 1933 Act or by the 1933 Act Regulations have been described in or filed as exhibits to the Registration Statement as so required.
(xiii) The Common Stock conforms, in all material respects, as to matters of law to the description thereof in the Registration Statement and the Disclosure PackageProspectus and the form of certificate used to evidence the Common Stock complies with all applicable statutory requirements, with any applicable requirements of the certificate of incorporation and by-laws of the Company and with the requirements of the NYSE.
(xiv) No filing with, or consent, approval, authorization, order, registration, qualification or decree of, any court or governmental authority or body in the United States, or any state or territory thereof, is necessary or required to be obtained by the Company or Caribiner or (to the best of such counsel's knowledge, without independent inquiry) any of the Selling Stockholders for the performance by the Company, Caribiner and each of the Selling Stockholders of its respective obligations hereunder, or in connection with the offer or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement and (iiin the case of the Company and each of the Selling Stockholders) on each Closing Datethe Pricing Agreement, except such as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws.
(xv) The execution, delivery and performance of this Agreement and (in the case of the Company) the Pricing Agreement, the issuance and delivery of the Securities and the consummation of the transactions contemplated herein, therein and in the Registration Statement have been duly authorized by the Company and Caribiner and will not conflict with or constitute a signed letter from breach of, or default under, or result in the Auditor addressed creation or imposition of any Encumbrances upon the Securities or any revenues, property or assets of the Company or any of the US Material Subsidiaries pursuant to any applicable treaty, law, rule, administrative regulation, judgement or order of any governmental agency or body or any administrative or court decree or to the Representative and dated the date best of such Closing Date(s)counsel's knowledge (in the case of the Selling Stockholders, without independent inquiry) any contract, indenture, mortgage, loan agreement, note, license, lease or other instrument or agreement to which the Company or any of the US Material Subsidiaries or any of the Selling Stockholders is a party or by which any of them may be bound, or to which any of the property or assets of the Company or any of the US Material Subsidiaries or any of the Selling Stockholders is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or any applicable treaty, law, rule, administrative regulation, judgment or order of any governmental agency or body or any administrative or court decree known to such counsel to be applicable to the Company, in form and substance reasonably satisfactory to each case (except in the Representative containing statements and information case of the type ordinarily included Securities) where the conflict, breach, default, imposition, Encumbrances or violation, consid ered alone or taken together with all such other conflicts, breaches, defaults, imposi tions, Encumbrances or violations, could be reasonably expected to have a Material Adverse Effect.
(xvi) To the best of such counsel's knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any of its subsidiaries is a party, or to which the property of the Company or any of its subsidiaries is subject, before or brought by any court or governmental agency or body, which, singly or in accountants’ “comfort letters” the aggregate, could reasonably be expected to underwriters with respect to result in any Material Adverse Effect or adversely affect the financial statements consummation of the transactions contemplated by this Agreement and certain financial the Pricing Agreement or the performance by the Company of its obligations hereunder or thereunder.
(xvii) The information contained in the Registration Statement and Prospectus under the Prospectus.
captions "Description of Capital Stock," "Management" (f) On each Closing Dateexcept "Management-Executive Officers, the Representative shall have received the favorable opinionDirectors and Key Management Personnel" and "-- Executive Compensation)", dated as of such Closing Date, of K"Certain Relationships and Transactions with Related Persons" (except that with respect to "Certain Relationships and Related Transactions with Related Persons-- Advances to ▇▇▇▇▇▇▇ Voekler C▇. ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel " such opinion may be to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as best of such Closing Datecounsel's knowledge) and "Shares Eligible for Future Sale" and, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration StatementStatement under item 14, to the General Disclosure Package extent that it constitutes matters of law, summaries of legal matters, legal documents or legal proceedings, or legal conclusions, has been reviewed by them and is correct in all material respects; to the Prospectus: (i) best of such counsel's knowledge, there shall not have been any material change in the capital stock of are no statutes or regulations, and no legal or governmental actions, suits or proceedings pending or threatened against the Company or any material change of its subsidiaries that are required to be described in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except Prospectus that are not described as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated herebyrequired.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 2 contracts
Sources: Purchase Agreement (Caribiner International Inc), Purchase Agreement (Caribiner International Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative Representatives shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC▇▇▇▇, P.C., as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative Representatives shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC▇▇▇▇, P.C., as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) On each Closing Date, there shall have been furnished to the Underwriters the negative assurance letter of ▇▇▇▇▇▇▇▇ & English, LLP, counsel to the Underwriters, dated such Closing Date, as applicable, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives and their counsel.
(ij) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(jk) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(kl) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mn) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 2 contracts
Sources: Underwriting Agreement (Wheeler Real Estate Investment Trust, Inc.), Underwriting Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (viv) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Disclosure PackageProspectus, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Prospectus, provided, that such letter delivered on the Firm Shares Closing Date and as of each Option Shares Closing Date (if any), shall use a “cut-off” date no more than two business days prior to the Firm Shares Closing Date and each Option Shares Closing Date (if any).
(f) On The Representatives shall have received on and as of (i) the date hereof and (ii) each Closing Date, a certificate of the Representative chief financial officer of the Company confirming certain financial information included in the General Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Representatives.
(g) The Representatives shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇ Voekler C▇▇▇▇ & ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as U.S. counsel to for the Company, an opinion and negative assurance letter, addressed to the Representatives and dated such Closing Date in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentatives.
(gh) On each Closing Date, the Representative The Representatives shall have received the favorable tax opinionon each Closing Date from Meitar, dated as of such Closing DateLaw Offices, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax Israeli counsel for the Company, an opinion and negative assurance letter, addressed to the Representatives and dated such Closing Date in form and substance reasonably satisfactory to the Representatives.
(i) [Reserved.]
(j) The Representatives shall have received on each Closing Date from White & Case LLP, U.S. counsel for the Underwriters, an opinion and negative assurance letter, addressed to the Representatives and dated such Closing Date in form and substance reasonably satisfactory to the Representatives.
(hk) The Representatives shall have received on each Closing Date from Gornitzky & Co., Israeli counsel for the Underwriters, an opinion, addressed to the Representatives and dated such Closing Date in form and substance reasonably satisfactory to the Representatives.
(l) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counsel.
(im) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jn) The Shares shall have been approved for listing on The Nasdaq Global Select Market and the NASDAQ Capital MarketTASE, subject only to official notice of issuanceissuance and counsel to the several Underwriters shall have received a copy of said approval of the TASE on or prior to the Firm Shares Closing Date.
(ko) Subsequent to The Representatives shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the share capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company or any of its subsidiaries that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company or any of its subsidiaries shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of its subsidiaries or any of their properties that is material to the Transaction Entities Company or any of its subsidiaries or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lp) On No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Firm Shares Closing DateDate or an Option Shares Closing Date (if any), FINRA prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign, including Israeli, court shall have confirmed been issued that it has not raised any objection with respect to the fairness and reasonableness would, as of the underwriting terms and agreements in connection with Closing Date or an Option Shares Closing Date (if any), prevent the Offeringissuance or sale of the Shares.
(mq) The Representatives shall have received on or prior to each Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as a foreign entity in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(r) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 2 contracts
Sources: Underwriting Agreement (Perion Network Ltd.), Underwriting Agreement (Perion Network Ltd.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that each of the Registration Statement and the ADS Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or or, to the Company’s knowledge, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing DateDate in all material respects (to the extent not otherwise qualified by materiality); (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the ADS Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, includednor (iii) as of the date it became effective, the ADS Registration Statement, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package ADS Registration Statement, the Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) The Representative shall have received on each Closing Date from each of [M▇▇▇▇ ▇▇▇▇▇ LLP and G▇▇▇▇▇▇▇ S▇▇▇▇▇▇▇ & Co.], counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received on each Closing Date from [R▇▇▇▇▇▇▇ ▇▇▇▇ & Partners], intellectual property counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance satisfactory to the Representative.
(h) On each the Closing Date, the Representative shall have received the favorable opinionopinion of E▇▇▇▇, ▇▇▇▇▇▇ & M▇▇▇▇▇, LLP, counsel for the Depository, dated the Closing Date, addressed to the Representative in form and substance satisfactory to the Representative.
(i) The Representative shall have received on the Closing Date from each of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. and Zysman, Aharoni, G▇▇▇▇ & Co., counsel for the Representative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, such documents as counsel they request for enabling them to the Company, in form and substance reasonably satisfactory to counsel for the Underwriterspass upon such matters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ij) The Representative shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV II hereto. In the event that O▇▇▇▇▇▇▇▇▇▇ & Co. Inc., in its sole discretion, agrees to release or waive any restriction set forth in a Lock-Up Agreement for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three Business Days before the effective date of such release or waiver (which release or waiver shall be substantially in the Form found at Exhibit A-1 attached hereto), the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 attached hereto through a major news service at least two Business Days before the effective date of the release or waiver.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance, and the TASE has approved the registration of the Ordinary Shares.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction adverse change in the future earnings results of operations of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material adverse change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company and the Depository shall have executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depository shall have taken all action necessary to permit the deposit of the Ordinary Shares and the issuance of the Shares in accordance with the Deposit Agreement. The Company shall, prior to the Closing Date, as the case may be, deposit the Ordinary Shares to be represented by the Shares with the Depository in accordance with the provisions of the Deposit Agreement and otherwise comply with the Deposit Agreement so that the ADSs will be issued by the Depository against receipt of such Ordinary Shares and delivered to the Underwriters at the Closing Dates.
(o) At each Closing Date, the Representative shall have received a certificate from the Depository satisfactory to the Representative with respect to the deposit with the Depository of the underlying Ordinary Shares represented by the Shares against issuance of the ADRs evidencing the Shares, the execution, issuance, countersignature and delivery of the ADRs evidencing the Shares pursuant to the Deposit Agreement and such other matters related thereto as the Representative may reasonably request.
(q) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 2 contracts
Sources: Underwriting Agreement (Anchiano Therapeutics Ltd.), Underwriting Agreement (Anchiano Therapeutics Ltd.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇▇ & F▇▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇▇ & F▇▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance, and will commence trading on the NASDAQ Capital Market at the Firm Shares Closing Date.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(n) The Company shall have filed the Articles Supplementary with the SDAT.
(o) The Company shall have delivered to the Representative a copy of the duly authorized and executed Operating Partnership Agreement Amendment.
Appears in 2 contracts
Sources: Underwriting Agreement (Medalist Diversified REIT, Inc.), Underwriting Agreement (Medalist Diversified REIT, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such each Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such as of the respective Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such the respective Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the favorable opinionCompany, an opinion and a negative assurance letter, addressed to the Representative and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received on each Closing Date from ▇▇▇▇▇▇▇▇ & F▇▇▇▇▇▇▇▇ PLCLLP, as Canadian counsel for the Company, an opinion, addressed to the CompanyRepresentative and dated as of such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(gh) On each Closing Date, the The Representative shall have received on each Closing Date from ▇▇▇▇▇▇ LLP, intellectual property counsel to the favorable tax Company, an opinion, addressed to the Representative and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to the Representative.
(i) The Representative shall have received on each Closing Date from ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇, P.C., counsel for the UnderwritersRepresentative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(hj) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jl) The Shares Company shall have been approved for apply to list or quote and promptly secure the listing of all of the Common Shares, including the Warrant Shares, sold pursuant to this Agreement on the NASDAQ Nasdaq Capital Market. The Company has taken no action to, subject only or likely to official notice of issuancehave the effect of, delisting the Common Shares, nor has the Company received any notification that the Nasdaq Capital Market is contemplating terminating such listing.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to would result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to would have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Securities.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 2 contracts
Sources: Underwriting Agreement (Aptose Biosciences Inc.), Underwriting Agreement (Aptose Biosciences Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become shall be effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430ARules 430A or 430B, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule Rules 430A or 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Rules 430A or 430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date, except for representations and warranties that speak solely as of an earlier date, which shall be true and correct as of such earlier date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Underwriter shall have received on each the Closing Date a certificate, addressed to the Representative Underwriter and dated such Closing Date, of the chief executive officer or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been but was not set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative Underwriter shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor ▇▇▇▇ ▇▇▇▇▇ addressed to the Representative Underwriter and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, Underwriter containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor ▇▇▇▇ ▇▇▇▇▇ addressed to the Representative Underwriter and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative Underwriter containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇ ▇▇▇▇▇▇▇▇ Voekler CLLP shall have furnished to the Underwriter such counsel’s written opinion and negative assurance statement, addressed to the Underwriter and dated the Closing Date in substantially the form attached hereto as Exhibit B.
(g) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP shall have furnished to the Underwriter such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Underwriter and dated the Closing Date in substantially the form and substance reasonably satisfactory to counsel for the Underwriters.attached hereto as Exhibit C.
(gh) On each Closing Date, the Representative The Underwriter shall have received on the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇Date from ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCProcter LLP, as tax counsel for the CompanyUnderwriter, in form an opinion, addressed to the Underwriter and substance dated such Closing Date, with respect to such matters as the Underwriter may reasonably satisfactory require, and the Company shall have furnished or provided access to such counsel of such documents as they request for the Underwritersenabling them to pass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Underwriter and their its counsel.
(ij) The Representative Underwriter shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares and Warrant Shares shall have been approved for listing on the The NASDAQ Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Underwriter shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth in or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ Underwriter’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(lm) On the Firm Shares Closing DateIf a filing has been made with FINRA, FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and agreements arrangements in connection with the Offeringissuance and sale of the Securities.
(mn) The Underwriter shall have received on the Closing Date a certificate addressed to the Underwriter and dated such Closing Date, of the Company’s Vice President, Regulatory Affairs and Compliance, in a form reasonably satisfactory to the Underwriter with respect to the regulatory affairs of the Company.
(o) The Underwriter shall have received on and as of the Closing Date a Secretary’s Certificate of the Company in a form reasonably satisfactory to the Underwriter.
(p) The Underwriter shall have received on and as of the Closing Date a certificate of the Chief Financial Officer of the Company in a form reasonably satisfactory to the Underwriter.
(q) The Company shall have furnished or caused to be furnished to the Representative Underwriter such further customary certificates or documents as the Representative Underwriter shall have reasonably requested.
(r) The Company shall have duly and validly executed and delivered the warrant agreement in respect of the Warrants, which shall have been countersigned by the warrant agent in respect of the Warrants, and a copy of such warrant agreement shall have been delivered to the Underwriter (the “Warrant Agreement”).
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Firm Shares are hereunder is subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of That the Registration Statement shall be in effect have become effective not later than 1:00 p.m., Chicago time, on the first full business day after the date of this Agreement, or at such later date and no proceedings for such purpose time as shall be pending before or threatened consented to in writing by the CommissionUnderwriter, and any requests for additional information on and, if the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission Underwriter and the Representative. If the Company has have elected to rely upon Rule 430A, Rule 430A the price of the Shares and any price-related or other information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period period, and, if the Underwriter and the Company have elected to rely upon a Term Sheet, such Term Sheet shall have been transmitted to the Commission for filing pursuant to Rule 434 and Rule 424(b) within the prescribed time period, and on or prior to the Closing Date, the Company shall have provided evidence satisfactory to the Underwriters Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations 430A. No stop order suspending the effectiveness of the Registration Statement shall have been issued and warranties no proceedings for the purpose shall have been instituted or shall be pending or, to the knowledge of the Company contained in this Agreement and in or the certificates delivered pursuant to Section 3(d) Selling Stockholder, shall be true contemplated by the Commission and correct when made and on and as there shall not have come to the attention of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement Underwriter any facts that would cause them to believe that the Prospectus, at the time it was required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed delivered to the Representative and dated such Closing Date, purchasers of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representationsShares, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they there were made, not misleading, and .
(Bb) since That subsequent to the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to effective date of the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been occurred any material change change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries not contemplated by the Prospectus, which, in the Underwriter's opinion, would materially adversely affect the market for the Shares or make it impracticable or inadvisable to proceed with the offering or the delivery of the Shares, as contemplated herein and in the Prospectus, or to attempt to enforce contracts for the purchase of Shares, and (ii) the business and operations of the Company shall not have been adversely affected by strike, fire, flood, accident or other calamity (whether or not insured).
(c) The Underwriter shall have received from Hewi▇▇ & ▇ewi▇▇, P.C., counsel for the Company, a favorable opinion dated the Closing Date and satisfactory to the Underwriter and the Underwriter's counsel to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement. The Company is duly qualified to do business as a foreign corporation and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except in any such case where the failure to so qualify or be in good standing would not have a material adverse effect on the condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole.
(ii) An opinion to the same general effect as clause (i) of this subparagraph (c) in respect of each direct and indirect subsidiary of the Company.
(iii) All of the issued and outstanding capital stock of the subsidiaries of the Company has been duly authorized and validly issued and is fully paid and non-assessable, and except as disclosed in the Registration Statement, the Company owns directly or indirectly 100 percent of the outstanding capital stock of each subsidiary and, to the best knowledge of such counsel, such stock is owned free and clear of any security interests, claims, liens, encumbrances or adverse interests of any nature.
(iv) The issued and outstanding capital stock of the Company or any material change in the indebtedness (other than in the ordinary course has been duly authorized and validly issued and is fully paid and non-assessable and free of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and preemptive rights.
(v) there shall not have been any material change The authorized capitalization of the Company consists entirely of 12,000,000 shares of Common Stock, of which __________ were issued and outstanding on the date of the Prospectus and 1,000,000 shares of Preferred Stock, of which _________________ were issued and outstanding on the date of the Prospectus and all of which conforms to the description thereof in the assets, properties, condition (financial Registration Statement and the Prospectus or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated herebyincorporated by reference therein.
(lvi) On The certificates for the Firm Shares Closing Dateto be delivered hereunder are in due and proper form, FINRA shall have confirmed that it has not raised any objection with respect and when duly countersigned by the Company's transfer agent and delivered to the fairness and reasonableness Underwriter against payment of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.agreed consideration
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(e) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) On or prior to the Firm Shares Closing Date, the Board of Directors and stockholders of the Company shall have approved and adopted an amended and restated certificate of incorporation and amended and restated bylaws in the forms filed with the Commission as exhibits 3.01 and 3.02 to the Registration Statement, respectively, and such amended and restated certificate of incorporation shall have been filed with the Secretary of State of the State of Delaware, and become effective.
(e) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in to their opinion knowledge, (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(ef) [Intentionally Omitted]
(g) The Representative Representatives shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date a signed letter from the Auditor Deloitte & Touche LLP addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, Representatives containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(fh) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from Berman, Rennert, Vogel & Mandler, P.A., counsel for the favorable Company, an opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler Ca▇▇▇▇▇sed ▇▇ ▇▇▇ & F▇▇▇▇ PLCRepresentatives and dated such Closing Date, and stating in effect that:
(i) Each of the Company and its subsidiaries has been duly organized and is validly existing as counsel a corporation in good standing under the laws of the jurisdiction of its incorporation. Each of the Company and its subsidiaries is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties or the nature of its business makes such qualification necessary, except where the failure to so qualify or to be in good standing, individually or in the aggregate, would not have a Material Adverse Effect.
(ii) Each of the Company and its subsidiaries has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as now being conducted and as described in the Registration Statement and the Prospectus and, with respect to the Company, in form to enter into and substance reasonably satisfactory perform its obligations under this Agreement and to counsel for issue and sell the UnderwritersShares.
(giii) On each Closing DateThe authorized, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form issued and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale outstanding capital stock of the Firm Shares and the Option Shares Company is as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given set forth in the Registration StatementStatement and the Prospectus under the caption "Capitalization" as of the dates stated therein and, the General Disclosure Package or the Prospectus: (i) since such dates, there shall not have has been any material no change in the capital stock of the Company except for subsequent issuances, if any, pursuant to this Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Prospectus; all of the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable and none of them was issued in violation of any preemptive or other similar right. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid and nonassessable, and no holder of the Shares is or will be subject to personal liability by reason of being such a holder. The issuance and sale of the Shares by the Company is not subject to any preemptive or other similar rights of any security holder of the Company. To the best of such counsel's knowledge, except as disclosed in the Registration Statement and the Prospectus, there are no preemptive or other rights to subscribe for or to purchase or any material change restriction upon the voting or transfer of any securities of the Company pursuant to the Company's certificate of incorporation or bylaws or other governing documents or any agreements or other instruments to which the Company is a party or by which it is bound. To the best of such counsel's knowledge, except as disclosed in the indebtedness (Registration Statement and the Prospectus, there is no outstanding option, warrant or other than right calling for the issuance of, and no commitment, plan or arrangement to issue, any share of stock of the Company or any security convertible into, exercisable for, or exchangeable for stock of the Company. The Common Stock, the Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the ordinary course Registration Statement and the Prospectus. The form of business) certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Transaction Entitiescertificate of incorporation or Bylaws of the Company and the requirements of the Nasdaq National Market. To the best of such counsel's knowledge, there are no persons with registration rights or other similar rights to have any securities registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act.
(iiiv) except as set forth All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly authorized, executed and delivered by the Company.
(v) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) nor the execution, delivery or performance of any other agreement or instrument entered into or to be entered into by the Company in connection with the transactions contemplated by the Registration StatementStatement and the Prospectus will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company or any subsidiary pursuant to the terms of, any indenture, mortgage, deed trust, note or other agreement or instrument of which such counsel is aware and to which the Company or any subsidiary is a party or by which either the Company or any subsidiary or any of its assets or properties or businesses is bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation, domestic or foreign, of which such counsel is aware or violate any provision of the charter or bylaws of the Company or any subsidiary.
(vi) No consent, approval, authorization, license, registration, qualification or order of any court or governmental agency or regulatory body is required for the due authorization, execution, delivery or performance of this Agreement by the Company or the consummation of the transactions contemplated hereby or thereby, except such as have been obtained under the Securities Act and such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the several Underwriters.
(vii) To the best of such counsel's knowledge, there is no action, suit, proceeding or other investigation, before any court or before or by any public body or board pending or threatened against, or involving the assets, properties or businesses of, the General Disclosure Package or Company which is required to be disclosed in the Prospectus, no material oral or written agreement or other transaction shall have been entered into by Registration Statement and the Transaction Entities that Prospectus and is not in the ordinary course of business so disclosed or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or which could reasonably be expected to have a Material Adverse Effect.
(viii) The statements in the Prospectus under the captions "Description of Capital Stock" and "Certain Relationships and Related Transactions," and in the Registration Statement under Item 15 of Part II, insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate in all material respects and accurately present the information with respect to such documents and matters. Accurate copies of all contracts and other documents required to be filed as exhibits to, or described in, the Registration Statement have been so filed with the Commission or are fairly described in the Registration Statement, as the case may be.
(ivA) Each of the Company and its subsidiaries is in compliance in all material respects with all applicable Environmental Laws; (B) none of the Company or its subsidiaries has received any notice from any governmental authority or third party of an asserted claim under any Environmental Law; (C) each of the Company and its subsidiaries has received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business and is in compliance with all terms and conditions of any such permit, license or approval, except where such failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or other approvals would not, singly or in the aggregate, have a Material Adverse Effect; and (D) no legal property which is or governmental actionhas been owned, suit leased or proceeding affecting occupied by the Transaction Entities Company or any of their properties that is material its subsidiaries has been designated as a Superfund site pursuant to the Transaction Entities CERCLA, or otherwise designated as a contaminated site under applicable state or local law.
(x) The Registration Statement, all Preliminary Prospectuses and the Prospectus and each amendment or supplement thereto (except for the financial statements and schedules and other financial data included therein, as to which such counsel expresses no opinion) comply as to form in all material respects with the requirements of the Securities Act and the Rules.
(xi) The Registration Statement is effective under the Securities Act, and to such counsel's knowledge no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall purpose have been instituted or threatened are threatened, pending or contemplated. Any required filing of the Prospectus and (vany supplement thereto pursuant to Rule 424(b) there shall not have under the Securities Act has been any material change made in the assets, properties, condition (financial or otherwisemanner and within the time period required by such Rule 424(b), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lxii) On The Shares have been approved for listing on the Firm Shares Nasdaq National Market.
(xiii) The capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus under the caption "Description of Capital Stock."
(xiv) The Company is not an "investment company" or an entity controlled by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended. To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representatives as to matters which are governed by laws other than the laws of the State of Florida, the General Corporation Law of the State of Delaware and the Federal laws of the United States; provided that such counsel shall state that in their opinion the Underwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representatives and counsel for the Underwriters. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the Representatives and representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus (except as specified in the foregoing opinion), on the basis of the foregoing, no facts have come to the attention of such counsel which lead such counsel to believe that the Registration Statement at the time it became effective or as of such Closing Date, FINRA shall have confirmed that it has not raised any objection Date (except with respect to the fairness financial statements and reasonableness notes and schedules thereto and other financial data, as to which such counsel need express no belief) contained any untrue statement of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished a material fact or caused omitted to state a material fact required to be furnished stated therein or necessary to make the Representative such further customary certificates or documents as the Representative shall have reasonably requested.state
Appears in 1 contract
Sources: Underwriting Agreement (Odimo INC)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (ix) the General Disclosure Package, nor (iiy) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler CDate from ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax LLP, counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, in the form attached to this Agreement as Exhibit B.
(g) The Representative shall have received on each Closing Date from ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP, intellectual property counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, in the form attached to this Agreement as Exhibit C.
(h) The Representative shall have received on each Closing Date from Proskauer Rose LLP, counsel for the Representative, an opinion, addressed to the Representative and dated such Closing Date, which shall be reasonably satisfactory in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents (including a Secretary’s Certificate) as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares to be delivered on a Closing Date are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the reasonable satisfaction of the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The Representative shall be satisfied that (i) the representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each such Closing Date as if made on such date; (ii) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment as required by the Securities Act or the Rules and (iii) since the respective dates as of which information is given in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, there has not been any material adverse change in the business, properties, financial condition or results of operations of the Company. The Company shall have performed in all material respects all covenants and agreements agreements, and satisfied all the conditions other conditions, contained in this Agreement and required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein on or prior to such Closing Date; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not 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, and (B) since the Effective Date no event has occurred which as required by the Securities Act or the Rules should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the ProspectusProspectus and was not so set forth; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: received a certificate on each Closing Date signed by the Secretary of the Company to the effect that, as of such Closing Date the Secretary certifies as to (ii)(A) simultaneously the accuracy and completeness of the Company’s charter and bylaws, (B) the resolutions of the Board of Directors and any committee thereof relating to the offering contemplated hereby and the execution and delivery of this Agreement, (C) the form of stock certificate representing the Shares, and (D) copies of all communications with the execution Commission; (ii) the incumbency and signature of persons signing this Agreement, the Registration Statement and other related documents; (iii) the approval of the Shares for listing on the Nasdaq National Market, subject only to official notice of issuance; and (iv) such other matters as Underwriters’ counsel may reasonably request.
(f) The Representative shall have been furnished evidence in the usual written or electronic form from the appropriate authorities of the several jurisdictions, or other evidence satisfactory to the Representative, of the good standing and qualifications of the Company.
(g) The Representative shall have received, at the time this Agreement is executed and on each Closing Date a signed letter from the Auditor PricewaterhouseCoopers LLP addressed to the Representative and dated dated, respectively, the date of this Agreement, in form Agreement and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each such Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(fh) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCand ▇▇▇▇ LLP, as counsel to for the Company, in form and substance reasonably satisfactory (i) an opinion, addressed to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, and dated as of such Closing Date, in the form attached hereto as Schedule IV, and (ii) an opinion, addressed to the Representative and dated such Closing Date, with respect to intellectual property matters.
(i) The legality and sufficiency of Kthe sale of the Shares hereunder and the validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters incident to the foregoing, and the form of the Registration Statement and of the Prospectus (except as to the financial statements and financial information contained therein) shall have been approved at or prior to the Closing Date by ▇▇▇▇▇▇, ▇▇▇▇▇ Voekler C& Bockius LLP, counsel for the Underwriters. The Representative shall have received on each Closing Date from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP an opinion, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance addressed to the Representative and their counseldated such Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement and the Prospectus and such other related matters as the Underwriters reasonably may request and such counsel shall have received such documents and other information as they request to enable them to pass upon such matters.
(ij) The Representative shall have received copies of the Locklock-up Agreements agreements executed by each entity or person listed on Schedule IV heretothe directors, executive officers and holders of the Company’s outstanding capital stock, as contemplated by Section 2(n) of this Agreement.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq National Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Voyager Pharmaceutical Corp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become shall be effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430A or 430B, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A or 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A or 430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in such capacity, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeCompany.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the favorable opinionCompany, an opinion and written negative assurances statement, addressed to the Representative and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇in form and substance satisfactory to the Representative and its legal counsel.
(g) The Representative shall have received on each Closing Date from ▇▇▇▇▇▇▇ & Fand ▇▇▇▇▇▇ PLCLLP, as special intellectual property counsel for the Company, an opinion and written negative assurances statement, addressed to the CompanyRepresentative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative and its legal counsel.
(gh) On each Closing Date, the The Representative shall have received the favorable tax opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler C▇▇Date from ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCProcter LLP, as tax counsel for the CompanyRepresentative, in form an opinion, addressed to the Representative and substance dated such Closing Date, with respect to such matters as the Representative may reasonably satisfactory require, and the Company shall have furnished or provided access to such counsel of such documents as they request for the Underwritersenabling them to pass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or and the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that materially affects or could reasonably be expected to materially affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable in the Representative’ ’s reasonable judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On As of the Firm Shares Closing Datedate hereof, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Dipexium Pharmaceuticals, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares and Warrants are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such the Closing Date.
(d) The Representative shall have received on each the Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such the Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such the Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on the favorable opinionClosing Date from DLA Piper LLP (US), counsel for the Company, an opinion and a negative assurance letter, addressed to the Representative and dated as of such Closing Date, of Kin form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received on the Closing Date from ▇▇▇▇▇▇, ▇▇▇▇▇ Voekler C& ▇▇▇▇▇▇▇ LLP, intellectual property counsel for the Company, an opinion and a negative assurance letter, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(h) The Representative shall have received on the Closing Date from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, FDA counsel for the Company, an opinion and a negative assurance letter, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) The Representative shall have received on the Closing Date from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCSchole LLP, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative, a negative assurance statement, addressed to the Representative and dated such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(gj) On each Closing Date, the The Representative shall have received on the favorable tax opinionClosing Date from West Coast Stock Transfer, dated as of such Closing DateInc. (the “Transfer Agent”), of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form duly executed warrant agency agreement between the Company and substance reasonably satisfactory to counsel for the UnderwritersTransfer Agent.
(hk) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Warrants as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(il) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jm) The Shares and the Warrant Shares shall have been approved for listing quotation on the NASDAQ Capital MarketNasdaq, subject only to official notice of issuance.
(kn) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares and Warrants as contemplated hereby.
(lo) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares and Warrants.
(mp) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that each of the Registration Statement and the ADS Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or or, to the Company’s knowledge, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing DateDate in all material respects (to the extent not otherwise qualified by materiality); (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the ADS Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, includednor (iii) as of the date it became effective, the ADS Registration Statement, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package ADS Registration Statement, the Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) The Representative shall have received on each Closing Date from each of ▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received on each Closing Date from ▇▇▇▇▇▇▇▇ ▇▇▇▇ & Partners, intellectual property counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance satisfactory to the Representative.
(h) On each the Closing Date, the Representative shall have received the favorable opinionopinion of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel for the Depository, dated the Closing Date, addressed to the Representative in form and substance satisfactory to the Representative.
(i) The Representative shall have received on the Closing Date from each of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. and Zysman, Aharoni, ▇▇▇▇▇ & Co., counsel for the Representative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, such documents as counsel they request for enabling them to the Company, in form and substance reasonably satisfactory to counsel for the Underwriterspass upon such matters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ij) The Representative shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV II hereto. In the event that ▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc., in its sole discretion, agrees to release or waive any restriction set forth in a Lock-Up Agreement for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three Business Days before the effective date of such release or waiver (which release or waiver shall be substantially in the Form found at Exhibit A-1 attached hereto), the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 attached hereto through a major news service at least two Business Days before the effective date of the release or waiver.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance, and the TASE has approved the registration of the Ordinary Shares.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction adverse change in the future earnings results of operations of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material adverse change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company and the Depository shall have furnished or caused executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depository shall have taken all action necessary to permit the deposit of the Ordinary Shares and the issuance of the Shares in accordance with the Deposit Agreement. The Company shall, prior to the Closing Date, as the case may be, deposit the Ordinary Shares to be furnished represented by the Shares with the Depository in accordance with the provisions of the Deposit Agreement and otherwise comply with the Deposit Agreement so that the ADSs will be issued by the Depository against receipt of such Ordinary Shares and delivered to the Representative such further customary certificates or documents as Underwriters at the Closing Dates.
(o) At each Closing Date, the Representative shall have received a certificate from the Depository satisfactory to the Representative with respect to the deposit with the Depository of the underlying Ordinary Shares represented by the Shares against issuance of the ADRs evidencing the Shares, the execution, issuance, countersignature and delivery of the ADRs evidencing the Shares pursuant to the Deposit Agreement and such other matters related thereto as the Representative may reasonably requestedrequest.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date a signed letter from the Auditor each of KPMG LLP and PricewaterhouseCoopers LLP addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, Representatives containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received on each Closing Date the favorable opinionfollowing opinions, addressed to the Representatives and dated as of such Closing Date, of K:
(i) an opinion from ▇▇▇▇▇ Voekler C▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC▇▇, P.C., counsel for the Company as to certain matters of Delaware corporate, New York, Oregon and Federal law, stating in effect as set forth on Annex 3(f)(i) hereto;
(ii) an opinion from Stoel Rives LLP, counsel to the CompanyCompany with respect to certain environmental and litigation matters, stating in form and substance reasonably satisfactory to counsel for the Underwriters.effect as set forth on Annex 3(f)(ii) hereto;
(giii) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of Kan opinion from ▇▇▇▇▇▇▇ Voekler C& ▇▇▇▇▇, P.C., counsel to the Company with respect to certain environmental and litigation matters, stating in effect as set forth on Annex 3(f)(iii) hereto;
(iv) an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ & F▇, counsel to the Company with respect to certain labor matters, stating in effect as set forth on Annex 3(f)(iv) hereto; and
(v) an opinion from Field LLP, special counsel for the Company and its Canadian Subsidiaries, stating in effect as set forth on Annex 3(f)(v) hereto.
(g) The Representatives shall have received on each Closing Date from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ PLC& ▇▇▇▇ LLP, as tax counsel for the CompanyRepresentatives, an opinion, addressed to the Representatives and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentatives.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counselcounsel and the Company shall have furnished to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(i) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital MarketNew York Stock Exchange, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of ------------------------------------------- the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a7(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment to the Registration Statement providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: that (i) the representationssigners of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement and that the representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct on and as of such Closing Date; (ii) Date with the same effect as if made on such Closing Date and the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact this Agreement required to be stated therein performed or necessary satisfied by it at or prior to make the statements therein, in light of the circumstances under which they were made, not misleadingsuch Closing Date, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (ivii) no stop order suspending the effectiveness of the Registration Statement has been issued and, and to the best of their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date a signed letter from the Auditor Ernst & Young LLP addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, Representatives containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler C▇Date from ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as tax counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, and stating in effect that:
(i) Each of the Company and its Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of their respective jurisdictions of incorporation. Each of the Company and its Subsidiaries is duly qualified to transact business and in good standing as a foreign corporation in Delaware, California [MoFo to provide].
(ii) Each of the Company and its Subsidiaries has all requisite corporate power and authority to own, lease and license its assets and properties and conduct its business as now being conducted as described in the Registration Statement and the Prospectus and with respect to the Company to enter into, deliver and perform its obligations under this Agreement and to issue and sell the Shares other than those required under the state and foreign Blue Sky laws.
(iii) The Company has authorized, issued and outstanding capital stock as set forth in the Registration Statement and the Prospectus under the caption "Capitalization" as of the dates stated therein, except for subsequent issuances pursuant to employee benefit plans described in the Prospectus or pursuant to the exercise of convertible securities described in the Prospectus; the certificates evidencing the Shares are in due and proper legal form and substance reasonably have been duly authorized for issuance by the Company; all of the outstanding shares of Common Stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable and, to such counsel's knowledge, none of them was issued in violation of any preemptive or other similar right. The Shares when issued and sold pursuant to this Agreement will be duly and validly issued, outstanding, fully paid and nonassessable and, to such counsel's knowledge, none of them will have been issued in violation of any preemptive or other similar right. To such counsel's knowledge, except as disclosed in the Registration Statement and the Prospectus, there are no preemptive or other rights to subscribe for or to purchase or any restriction upon the voting or transfer of any securities of the Company pursuant to the Company's Certificate of Incorporation or by-laws or other governing documents or any agreements or other instruments to which the Company is a party or by which it is bound. To the best of such counsel's knowledge, except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue, any share of stock of the Company or any security convertible into, exercisable for, or exchangeable for stock of the Company. The Common Stock and the Shares conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus. The issued and outstanding shares of capital stock of each of the Company's Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company or by another wholly owned subsidiary of the Company, free and clear of any perfected security interest or, to the knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, other than those contained in the Registration Statement and the Prospectus.
(iv) All necessary corporate and stockholder action has been duly and validly taken by the Company and its stockholders to authorize the execution, delivery and performance of this Agreement and for the consummation of the Reincorporation Merger and the issuance and sale of the Shares. This Agreement has been duly and validly authorized, executed and delivered by the Company.
(v) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares and the consummation of the Reincorporation Merger) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of
(vi) any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company or any Subsidiary pursuant to (i) any agreement filed as an Exhibit to the Registration Statement, (ii) any judgment, decree, order, statute, rule or regulation, domestic or foreign, of which such counsel is aware or (iii) any provision of the charter or by-laws of the Company or any Subsidiary.
(vii) No consent, approval, authorization, license, registration, qualification or order of any court or governmental agency or regulatory body is required for the due authorization, execution, delivery or performance of this Agreement by the Company or the consummation of the transactions contemplated hereby or thereby, including the Reincorporation Merger, except such as have been obtained and such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the several Underwriters and by the NASD.
(viii) Except as disclosed in the Prospectus, to such counsel's knowledge, there is no litigation or governmental or other proceeding or investigation, before any court or before or by any public body or board pending or threatened against, or involving the assets, properties or businesses of, the Company which is required to be disclosed in the Registration Statement and the Prospectus or which would have a Material Adverse Effect.
(ix) The statements in the Prospectus under the captions "Description of Capital Stock," "Material U.S. Federal Tax Considerations for Non-U.S. Holders" and "Shares Eligible for Future Sale" insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate in all material respects and accurately present the information called for with respect to such documents and matters. Accurate copies of all contracts and other documents required to be filed as exhibits to, or described in, the Registration Statement have been so filed with the Commission or are fairly described in the Registration Statement, as the case may be.
(x) The Registration Statement, all Preliminary Prospectuses and the Prospectus and each amendment or supplement thereto (except for the financial statements and schedules and other financial and statistical data included therein, as to which such counsel expresses no opinion) comply as to form in all material respects with the requirements of the Securities Act and the Rules.
(xi) The Registration Statement is effective under the Securities Act, and to such counsel's knowledge no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened, pending or contemplated. Any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by such Rule 424(b).
(xii) The Shares have been approved for listing on the Nasdaq Stock Market's National Market.
(xiii) The capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus under the caption "Description of Capital Stock."
(xiv) The Company is not an "investment company" or an entity controlled by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended. To the extent deemed advisable by such counsel, they may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representatives as to matters which are governed by laws other than the laws of the States of New York and California, the General Corporation Law of the State of Delaware and the Federal laws of the United States; provided that such counsel shall state that in their opinion the Underwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representatives and counsel for the Underwriters. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the Representatives and representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus (except as specified in the foregoing opinion), on the basis of the foregoing, no facts have come to the attention of such counsel which lead such counsel to believe that the Registration Statement at the time it became effective (except with respect to the financial statements and notes and schedules thereto and other financial data, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus as amended or supplemented (except with respect to the financial statements, notes and schedules thereto and other financial data, as to which such counsel need make no statement) on the date thereof contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) The Representatives shall have received on each Closing Date from ▇▇▇▇ ▇▇▇▇▇▇▇, general counsel of the Company, an opinion, addressed to the Representatives and dated such Closing Date, as set forth in Exhibit A hereto.
(h) The Representatives shall have received on each Closing Date from Leydig, ▇▇▇▇ & ▇▇▇▇▇ LLP, patent counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, as set forth in Exhibit B hereto.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counselcounsel and the Underwriters shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ an opinion, addressed to the Representatives and dated such Closing Date, with respect to the Shares, the Registration Statement and the Prospectus, and such other related matters, as the Representatives may reasonably request, and the Company shall have furnished to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ij) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuancedescribed in Section 4(q).
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (American Pharmaceutical Partners Inc /Ca/)
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares are Securities is subject to each of the following terms and conditions:
(a) Notification that each of the Registration Statement Statements has become effective shall have been received by the Representative Underwriter and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of either of the Registration Statement Statements shall be in effect and no proceedings for such purpose shall be pending before or or, to the knowledge of the Company, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement Statements or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement Statements pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Underwriter shall have received on each the Closing Date a certificate, addressed to the Representative Underwriter and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by the Company; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement Statements and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration StatementStatements, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement Statements has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Underwriter shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statements and the General Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative Underwriter containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statements and the Prospectus.
(f) On each Closing Date, the Representative The Underwriter shall have received on the favorable opinionClosing Date from Ropes & ▇▇▇▇ LLP, counsel for the Company, an opinion and written statement, addressed to the Underwriter and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇in form and substance as is set forth on Exhibit B attached hereto.
(g) The Underwriter shall have received on the Closing Date from ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCProcter LLP, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing DateUnderwriter, an opinion and written statement, addressed to the Representative shall have received the favorable tax opinion, and dated as of such Closing Date, with respect to the validity of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCthe Securities, the Registration Statements, the General Disclosure Package, the Prospectus and other related matters as tax the Underwriter reasonably may request, and such counsel for the Company, in form shall have received such papers and substance reasonably satisfactory information as they request to counsel for the Underwritersenable them to pass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Underwriter and their counselcounsel for the Underwriter.
(i) The Representative Underwriter shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV III hereto.
(j) The Shares and the Warrant Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(k) Subsequent to The Underwriter shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the General Disclosure Package and the Prospectus, (i) except as set forth or contemplated by the Registration StatementStatements, the Statutory Prospectus, the General Disclosure Package or the Prospectus: (i) , there shall not have been any material change in the capital stock of the Company (other than as a result or the exercise of outstanding stock options) or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration StatementStatements, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) except as set forth or contemplated by the Registration Statements, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) except as set forth or contemplated by the Registration Statements, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) except as set forth or contemplated by the Registration Statements, the Statutory Prospectus, the General Disclosure Package or the Prospectus, there shall not have been any material adverse change in the assets, properties, condition (financial or otherwise)condition, or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their its Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ Underwriter’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA the Company shall have confirmed that it has not raised any objection with respect furnished to the fairness and reasonableness Underwriter a Secretary’s Certificate of the underwriting terms and agreements in connection with the OfferingCompany.
(m) On the Closing Date, the Company shall have furnished to the Underwriter a Certificate of the Chief Financial Officer of the Company.
(n) The Company shall have furnished or caused to be furnished to the Representative Underwriter such further customary certificates or documents as the Representative Underwriter shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representative, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, signed on behalf of the Company by the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion opinion, (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeCompany.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Disclosure PackageProspectus, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Prospectus, provided, that such letter delivered on the Firm Shares Closing Date and as of each Option Shares Closing Date (if any), shall use a “cut-off” date no more than two business days prior to the Firm Shares Closing Date and each Option Shares Closing Date (if any).
(f) On The Representative shall have received on and as of (i) the date hereof and (ii) each Closing Date, a certificate of the chief financial officer of the Company confirming certain financial information included in the Registration Statement, the General Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler CDate from ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & F▇▇▇▇▇▇▇▇ PLC& ▇▇▇▇▇▇▇▇▇, as tax LLP, counsel for the Company, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from White & Case LLP, counsel for the Representative, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each applicable entity and person requested by the Representative prior to the execution of this Agreement. In the event that the Representative, in its sole discretion, agrees to release or person listed on Schedule IV waive any restriction set forth in a Lock-up Agreement for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three business days before the effective date of such release or waiver (which release or waiver shall be substantially in the form found at Exhibit A-1 hereto, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 hereto through a major news service at least two business days before the effective date of the release or waiver.
(jk) The Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries Company considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On or before the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Firm Shares Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares.
(o) The Representative shall have received on or prior to each Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as a foreign entity in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(p) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents (including a Secretary’s Certificate) as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become effective shall have been received by the Representative become effective, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement Agreement, and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated as of such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC▇▇▇, as counsel for the Company, an opinion and a negative assurance letter, addressed to the CompanyRepresentative and dated as of such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & F▇▇▇▇▇▇ PLCshall have furnished to the Underwriters an opinion, as tax intellectual property counsel for to the Company, addressed to the Representative and dated as of the Closing Date, as applicable, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, an opinion, addressed to the Representative and dated as of such Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Company Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to The Company shall have filed a Notification: Listing of Additional Shares with The Nasdaq Capital Market and received no objection thereto.
(l) The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened threatened, and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall not have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to the accuracy on the date of this Underwriting Agreement, as of the Applicable Time and as of each of the Closing Times, of the representations of the Fund and the Adviser in this Underwriting Agreement, to the accuracy and completeness of all statements made by the Fund, the Adviser or any of their respective officers in any certificate delivered to the Representative or their counsel pursuant to this Underwriting Agreement, to performance by the Fund and the Adviser of their respective obligations under this Underwriting Agreement and to the satisfaction (or waiver in writing by the Representative on behalf of the Underwriters) of each of the following terms and additional conditions:
(a) Notification that The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and at the Closing Time, no stop order suspending the effectiveness of the Registration Statement, any post-effective amendment thereto or any Rule 462(b) Registration Statement has become effective shall have been received by issued under the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No 1933 Act, no order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have has been or shall be in effect issued, and no order suspending the effectiveness revocation of registration has been issued pursuant to Section 8(e) of the Registration Statement shall be in effect 1940 Act, and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) those purposes shall have been instituted or are pending or, to the Fund’s knowledge contemplated; and the Fund has complied with to the satisfaction of each request (if any) from the Commission and for additional information. A prospectus containing the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A Information shall have been transmitted to filed with the Commission for filing pursuant to in the manner and within the time frame required by Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, (or a post-effective amendment providing such information shall have been promptly filed with, and declared effective by the Commission in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date430A).
(db) The Representative shall have received on each Closing Date a certificate, addressed to Since the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct dates as of such Closing Date; (ii) the Company has performed which information is given in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Pricing Prospectus and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not includedate of this Underwriting Agreement, and as of the Applicable Time, neither (i) there must not have been any change in the General Disclosure Package, nor Common Shares or any adverse change in the liabilities of the Fund except as set forth in or contemplated by the Pricing Prospectus or the Prospectus; (ii) there must not have been any individual Issuer Free Writing material adverse change in the condition (financial or otherwise), earnings, business affairs, business prospects, management, properties, net assets or results of operations, whether or not arising from transactions in the ordinary course of business, of the Fund or the Adviser as set forth in or contemplated by the Pricing Prospectus or the Prospectus; (iii) the Fund must not have sustained any loss or interference with its business from any court or from any legislative or other governmental action, when considered together with order or decree, whether foreign or domestic, or from any other occurrence not described in the General Disclosure PackageRegistration Statement, includedthe Pricing Prospectus and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any respect any statement or information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or any untrue statement of a material fact and did not omit to state a material fact required to or information omitted in the Registration Statement, the Pricing Prospectus or the Prospectus that should be stated reflected therein or necessary in order to make the statements thereinor information therein (in the case of the Pricing Prospectus and the Prospectus, in light of the circumstances under which they were made), not misleadingmisleading in any material respect; if, in the judgment of the Representative, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (b) is material and adverse so as to make it impracticable or inadvisable to consummate the sale and delivery of the Shares to the public on the terms and in the manner contemplated by the Pricing Prospectus.
(Bc) since The Representative must have received as of each Closing Time a certificate, dated such date, of the Effective Date no event has occurred which should Chief Executive Officer, President, an Executive or a Vice-President and the Controller, Treasurer, Assistant Treasurer, Chief Financial Officer or Chief Accounting Officer of each of the Fund and the Adviser certifying (in their capacity as such officers) that (i) the signers have been set forth in a supplement or otherwise required an amendment to carefully examined the Registration Statement, the General Disclosure Package Pricing Prospectus, the Prospectus and this Underwriting Agreement, (ii) the representations of the Fund (with respect to the certificates from such Fund officers) and the representations of the Adviser (with respect to the certificates from such officers of the Adviser) in this Underwriting Agreement are accurate on and as of the date of the certificate, (iii) there has not been any adverse change resulting in a Material Adverse Effect (with respect to the certificates from such Fund officers) or Adviser Material Adverse Effect (with respect to the certificates from such officers of the Adviser), which change would materially and adversely affect the ability of the Fund or the Prospectus; Adviser, as the case may be, to fulfill its obligations under this Underwriting Agreement, the Investment Advisory Agreement (with respect to the certificates from such officers of the Adviser), whether or not arising from transactions in the ordinary course of business, or the Fee Agreement, (iv) with respect to the certificates from such officers of the Fund only, no stop order suspending the effectiveness of the Registration Statement Statement, prohibiting the sale of any of the Shares or otherwise having a Material Adverse Effect on the Fund has been issued and, to their knowledgethe knowledge of such officers after reasonable investigation, no proceedings for that any such purpose have been instituted or are pending under before or threatened by the Securities Act; and Commission or any other regulatory body, whether foreign or domestic, (v) there with respect to the certificates from such officers of the Adviser, no order having an Adviser Material Adverse Effect has been issued, and, to the knowledge of such officers after reasonable investigation, no proceedings for any such purpose are pending before or threatened by the Commission or any other regulatory body, whether foreign or domestic, and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Adviser (with respect to the certificates from such officers of the Adviser) has performed all of its respective agreements that this Underwriting Agreement requires it to perform by such Closing Time (to the extent not occurred any material adverse change waived in writing by the Representative).
(d) The Representative must have received as of each Closing Time the opinions dated as of the date thereof substantially in the assets, properties, condition, financial or otherwise, or form of Appendix B and C to this Underwriting Agreement from the counsel identified in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeeach such Appendix.
(e) The Representative shall must have received: (i) simultaneously with the execution received as of this Agreement a signed letter each Closing Time from the Auditor addressed to the Representative and Dechert LLP an opinion dated as of the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters thereof with respect to the financial statements and certain financial information contained in Fund, the Shares, the Registration Statement and the Disclosure PackageProspectus and this Underwriting Agreement in a form reasonably satisfactory in all respects to the Representative. The Fund and the Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(f) The Representative must have received on the date this Underwriting Agreement a signed report from ▇▇▇▇▇, dated such date, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ reports with respect to the financial information of the Fund contained in the Registration Statement, the Pricing Prospectus or the Prospectus. The Representative also must have received from ▇▇▇▇▇ a report, as of each Closing Time, dated as of the date thereof, in form and substance satisfactory to the Representative, to the effect that they reaffirm the statements made in the earlier report, except that the specified date referred to shall be a date not more than three business days prior to such Closing Time.
(g) At the time of the execution of this Agreement, the Representative shall have received from ▇▇▇▇▇ a letter dated such date, in form and substance reasonably satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Prospectus.
(fh) On each At the Closing DateTime, the Representative shall have received the favorable opinion, dated as of such Closing Date, of Kfrom ▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opiniona letter, dated as of such the Closing DateTime, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCthis Section 7, as tax counsel for except that the Company, in form and substance reasonably satisfactory specified date referred to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance a date not more than three business days prior to the Representative and their counselClosing Time.
(i) The Representative shall have received copies of At the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Closing Time, the Shares shall have been approved for listing on the NASDAQ Capital MarketNYSE, subject only to official notice of issuance.
(kj) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements arrangements relating to the offering of the Shares.
(k) At the Closing Time, TCS shall have received the Fee Agreement, dated as of the Closing Time, as executed by the Adviser.
(l) At the Closing Time and at each Date of Delivery (if any), counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Fund and the Adviser in connection with the Offering.
(m) The Company organization and registration of the Fund under the 1940 Act and the issuance and sale of the Shares as herein contemplated shall have furnished or caused to be furnished satisfactory in form and substance to the Representative Representative(s) and counsel for the Underwriters. All opinions, letters, reports, evidence and certificates mentioned above or elsewhere in this Underwriting Agreement will comply only if they are in form and scope reasonably satisfactory to counsel for the Underwriters, provided that any such further customary certificates or documents as the Representative documents, forms of which are annexed hereto, shall have reasonably requestedbe deemed satisfactory to such counsel if substantially in such form.
Appears in 1 contract
Sources: Underwriting Agreement (Tap US Private Equity Fund of Funds)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares and Warrants are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the any certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such the Closing Date.
(d) The Representative shall have received on each the Closing Date a certificate, addressed to the Representative and dated such the Closing Date, of the chief executive or chief operating and financial officer and the chief financial officer or chief accounting officer executive chairman of the board of directors of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such the Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on the favorable opinion, dated as of such Closing Date, of KDate from C▇▇▇▇▇ Voekler CLLP, corporate and intellectual property counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received on the Closing Date from L▇▇▇▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ PLCLLP, as counsel for the Representative, an opinion and negative assurance statement, addressed to the CompanyRepresentative and dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Warrants as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counselcounsel to the Underwriters.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person director and executive officer of the Company listed on Schedule IV II hereto.
(j) The Shares Company shall have submitted a Notification Form: Listing of Additional Shares with The Nasdaq Capital Market with respect to the Shares and the Warrant Shares and Nasdaq shall have raised no objection with respect to the listing of the Shares and the Warrant Shares which has not been approved for listing resolved to the reasonable satisfaction of the Representative on or before the NASDAQ Capital Market, subject only to official notice of issuanceClosing Date.
(k) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares and Warrants as contemplated hereby.
(l) On or prior to the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares and Warrants.
(m) The Company shall have delivered to the Representative a fully executed counterpart of the Warrant Agreement and PDFs of the fully executed Global Certificates (as defined in the Warrant Agreement).
(n) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Outlook Therapeutics, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period period, and the Company shall have provided evidence satisfactory to the Underwriters Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company and the Selling Shareholder contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date signed letters from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Tevet CPA, ▇▇▇▇▇▇ LLP, an independent member of ▇▇▇▇▇ ▇▇▇▇▇ International and ▇▇▇▇▇▇▇▇▇ Almagor & Co., a signed letter from the Auditor member of Deloitte Touche Tohmatsu, addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinionon each Closing Date from Shiboleth, dated as of such Closing DateYisraeli, of K▇▇▇▇▇ Voekler C▇▇▇Roberts, ▇▇▇▇▇▇ & F▇▇▇▇ PLCCo., as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing DateCompany and the Selling Shareholder, the Representative shall have received the favorable tax an opinion, addressed to the Representatives and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, and stating in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.effect that:
(i) The Representative shall have received copies Company has been duly organized and is validly existing as a company under the laws of the Lock-up Agreements executed State of Israel. No proceeding has been instituted by each entity or person listed on Schedule IV heretothe Registrar of Companies in Israel for the dissolution of the Company.
(jii) The Company has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business in Israel as now being conducted and as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement and to issue and sell the Shares shall have been approved for listing on to be sold by the NASDAQ Capital Market, subject only to official notice of issuanceCompany.
(kiii) Subsequent to The authorized, issued and outstanding capital stock of the execution and delivery of this Agreement or, if earlier, the dates Company is as of which information is given set forth in the Registration StatementStatement and the Prospectus under the caption “Capitalization” as of the dates stated therein and, the General Disclosure Package or the Prospectus: (i) since such dates, there shall not have has been any material no change in the capital stock of the Company except for subsequent issuances, if any, pursuant to this Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Prospectus; all of the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable and none of them was issued in violation of any preemptive or other similar right. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid and nonassessable, and no holder of the Shares is or will be subject to personal liability by reason of being such a holder. The issuance and sale of the Shares by the Company and the sale of the Shares by the Selling Shareholder are not subject to any preemptive or other similar rights of any securityholder of the Company. To the best of such counsel’s knowledge, except as disclosed in the Registration Statement and the Prospectus, there are no preemptive or other rights to subscribe for or to purchase or any material change restriction upon the voting or transfer of any securities of the Company pursuant to the Company’s Memorandum of Association, Articles of Association or By-laws or other governing documents or any agreements or other instruments to which the Company is a party or by which it is bound. To the best of such counsel’s knowledge, except as disclosed in the indebtedness (Registration Statement and the Prospectus, there is no outstanding option, warrant or other than right calling for the issuance of, and no commitment, plan or arrangement to issue, any share of stock of the Company or any security convertible into, exercisable for, or exchangeable for stock of the Company. The Ordinary Shares and the Shares conform in all material respects to the descriptions thereof contained in the ordinary course Registration Statement and the Prospectus. The form of business) certificate used to evidence the Ordinary Shares complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Transaction EntitiesMemorandum of Association, Articles of Association or By-laws of the Company. To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act that have not been waived.
(iv) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly authorized, executed and delivered by the Company
(v) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will (i) give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company pursuant to the terms of, any indenture, mortgage, deed trust, note or other agreement or instrument of which such counsel is aware and to which the Company or any subsidiary is a party or by which either the Company or any of its assets or properties or businesses is bound, or any franchise, license, permit, judgment, decree, order, Israeli statute, rule or regulation, domestic or foreign, of which such counsel is aware or (ii) except as set forth violate any provision of the Memorandum of Association, Articles, charter or contemplated by-laws of the Company .
(vi) No consent, approval, authorization, license, registration, qualification or order of any Israeli court or governmental agency or regulatory body is required for the due authorization, execution, delivery or performance of this Agreement by the Company or the consummation of the transactions contemplated hereby or thereby. Under exchange control regulations currently in effect there are no authorizations or consents required from any governmental or regulatory body in Israel to give nonresidents of Israel the rights to freely repatriate to non-Israel currency all amounts received with respect to Ordinary Shares that were purchased with non-Israel currency, whether as a dividend, as a liquidating distribution or as proceeds from the sale of such shares, subject to applicable tax withholding.
(vii) Except as disclosed in the Registration Statement, the General Disclosure Package Statement or the Prospectus, to the best of such counsel’s knowledge, there is no material oral or written agreement action, suit, proceeding or other transaction shall have been entered into investigation, before any Israeli court or before or by any Israeli public body or board pending or threatened against, or involving the Transaction Entities that assets, properties, Permits or businesses of, the Company which is not disclosed in the ordinary course of business Registration Statement or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss Prospectus or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or which could reasonably be expected to have a Material Adverse Effect.
(viii) The statements in the Prospectus under the captions “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Business-Legal Proceedings,” “Management,” “Related Party Transactions,” “Description of Ordinary Shares” and “Israeli Taxation,” and in the Registration Statement under Item 6 of Part II, insofar as such statements constitute a summary of matters referred to therein, are accurate in all material respects and accurately present the information with respect to such documents and matters. All contracts and other documents filed as exhibits or described in the Registration Statement are fairly described in the Registration Statement.
(ix) l
(x) The capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus under the caption “Description of Ordinary Shares.”
(xi) Except for the Israeli stamp duty and assuming that none of the Underwriters is otherwise subject to taxation in Israel, the issuance and sale to the Underwriters of the Shares to be sold by the Company hereunder are not subject to any tax imposed by Israel or any political subdivision thereof.
(xii) As provided in Section 10 of this Agreement, the Company has duly and irrevocably appointed Camtek USA, Inc. as its agent to receive service of process in any action against it in any Federal or state court sitting in the county of New York arising out of or in connection with the public offering.
(xiii) On the assumption that the jurisdiction clause in Section 10 of this Agreement is valid and binding under the laws of the State of New York by which this Agreement is expressly governed and assuming a motion is properly brought before an Israeli court in accordance with Israeli law, such counsel knows of no reason why the Israel courts would not give effect to the parties’ choice of courts in the county of New York for any action to be brought by the Company against the Underwriters in relation to this Agreement, except as such enforceability may be limited by applicable general principles of equity and/or public policy.
(xiv) Subject to certain time limitations, an Israeli court may declare a foreign civil judgment enforceable if it finds that the judgment was rendered by a court which was, according to the laws of that state of the court, competent to render the judgment; the judgment is no longer appealable; the obligation imposed by the judgment is enforceable according to the rules relating to enforceability of judgments in Israel and the substance of the judgment is not contrary to public policy; and the judgment is executory in the state in which it was given. A foreign judgment will not be declared enforceable if it was given in a state whose laws do not provide for the enforcement of judgments of Israeli courts (subject to exceptional cases) or if its enforcement is likely to prejudice the sovereignty or security of the State of Israel. An Israeli court also will not declare a foreign judgment enforceable if it is proved to the Israeli court that (i) the judgment was obtained by fraud; (ii) there was no due process; (iii) the judgment was rendered by a court not competent to render it according to the laws of private international law in Israel; (iv) no legal the judgment is at variance with another judgment that was given in the same matter between the same parties and which is still valid; or governmental action(v) at the time the action was brought in the foreign court a suit in the same matter and between the same parties was pending before a court or tribunal in Israel.
(xv) This Agreement and the Selling Shareholder Lock-up Agreement have been duly authorized, suit executed and delivered by or proceeding affecting on behalf of the Transaction Entities or any Selling Shareholder.
(xvi) All necessary corporate action has been duly and validly taken by the Selling Shareholder to authorize the execution, delivery and performance of their properties that is material this Agreement and the Lock-up Agreement and the issuance and sale of the Shares. Each of this Agreement and the Lock-up Agreement has been duly and validly authorized, executed and delivered by the Selling Shareholder.
(xvii) The execution, delivery and performance of this Agreement and the Lock-up Agreement and the sale and delivery by the Selling Shareholder of the Shares to be sold by the Transaction Entities or that affects or could reasonably be expected to affect the transactions Selling Shareholder as contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change the consummation of the transactions contemplated in this Agreement and in the assetsRegistration Statement and the Prospectus and compliance by the Selling Shareholder with its obligations hereunder do not and will not, propertieswhether with or without the giving of notice or passage of time or both, condition (financial conflict with or otherwise)constitute a breach of, or default under or result in the results creation or imposition of operationsany tax, business affairs lien, charge or business prospects encumbrance upon the Shares or any property or assents of the Transaction Entities Selling Shareholder pursuant to, any contract, indenture, mortgage, deed of trust, loan or their Subsidiaries considered as credit agreement, note, license, lease or other instrument or agreement to which the Selling Shareholder is a whole that makes it impractical party or inadvisable in by which the Representative’ judgment Selling Shareholder may be bound, or to proceed with the purchase or offering which any of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness property or assets of the underwriting terms and agreements Selling Shareholder may be subject nor will such action result in connection with any violation of the Offering.
(m) The Company shall have furnished provisions of the memorandum or caused to be furnished to association or articles of association of the Representative such further customary certificates Selling Shareholder, if applicable, or documents as the Representative shall have reasonably requested.any law, administrative regulation, judgment or order of any governmental agency or body or any administrative or court decree ha
Appears in 1 contract
Sources: Underwriting Agreement (Camtek LTD)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters under this Agreement are several and not joint. The respective obligations ------------------------------------------- of the Underwriters to purchase the Shares Notes hereunder are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the The Registration Statement shall be in effect have become effective not later than 5:00 p.m., Eastern time, on the date hereof, or at such later date and no proceedings for such purpose time as shall be pending before or threatened consented to in writing by the CommissionUnderwriters, and any requests for additional information on and, if the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission Underwriters and the Representative. If the Company has have elected to rely upon Rule 430A430A under the Act, Rule 430A the price of the Notes and any price-related or other information previously omitted from the effective Registration Statement pursuant to such Rule 430A under the Act shall have been transmitted to the Commission for filing pursuant to Rule 424(b424 (b) within the prescribed time period period, and on or prior to the Closing Date, the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(cb) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed Subsequent to the Representative and dated such Closing Date, effective date of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, (i) there shall not have occurred any change, or any material development involving a prospective change, in or affecting particularly the business or properties of the Company and the Subsidiaries, taken as a whole, not contemplated by the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus andwhich, in their the Underwriters' opinion (A) as would materially adversely affect the market for the Notes or make it impracticable or inadvisable to proceed with the offering or the delivery of the Effective Date Notes, as contemplated herein and in the Registration Statement and Prospectus did not includeProspectus, and as or to attempt to enforce contracts for the purchase of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure PackageNotes, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative business and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information operations of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Company and the ProspectusSubsidiaries shall not have been materially interfered with by strike, fire, flood, accident or other calamity (whether or not insured).
(fc) On each Closing Date, the Representative The Underwriters shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇from ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form a favorable opinion dated the Closing Date and substance reasonably satisfactory to counsel for the Underwriters and the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance ' counsel to the Representative and their counsel.effect that:
(i) The Representative shall have received copies Each of the Lock-up Agreements executed by Company and the Bank has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Markethas all requisite corporate power and corporate authority to own, subject only to official notice of issuance.
(k) Subsequent to the execution lease and delivery of this Agreement or, if earlier, the dates operate its properties and conduct its business as of which information is given described in the Registration Statement, the General Disclosure Package or Statement and the Prospectus: (i) there shall not have been any material change in the capital stock of . The Bank is wholly-owned by the Company or any material change in and the indebtedness (other than in Bank and GBC Venture Capital, Inc. are the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated herebyCompany's only direct subsidiaries.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Purchase Agreement (GBC Bancorp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇▇ & F▇▇▇▇▇ PLCPLC and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Associates LLP, with respect to certain matters pertaining to New York law, each as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇▇ & F▇▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Medalist Diversified REIT, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus”, as defined in Rule 405 of the Rules, shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(ef) The Representative shall have received: , (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure PackageProspectus, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date. In addition, such letter shall confirm that the Representative shall have received Auditor is independent public accountants within the favorable opinion, dated as meaning of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel the Securities Act and are in compliance with the applicable requirements relating to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as qualification of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale accountants under Rule 2-01 of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies Regulation S-X of the Lock-up Agreements executed by each entity or person listed on Schedule IV heretoCommission.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Pharmacopeia Drug Discovery Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective and shall have been received by the Representative Representative, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement Agreement, and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with on or prior to the execution of this Agreement Firm Securities Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of KDate (i) an opinion and negative assurance letter from ▇▇▇▇▇ Voekler C& ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as corporate counsel for the Company, addressed to the CompanyRepresentative and dated as of such Closing Date, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler Cand (ii) an opinion and negative assurance letter from ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇▇▇ PLCPLLC, as tax Nevada counsel for the Company, addressed to the Representative and dated as of such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(hg) All proceedings taken in connection with the sale of the Firm Shares Securities and the Option Shares and/or Option Warrants as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective and shall have been received by the Representative Representative, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement Agreement, and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as counsel for the Company, an opinion and a negative assurance letter, addressed to the CompanyRepresentative and dated as of such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCPLLC shall have furnished to the Underwriters an opinion, as tax intellectual property counsel for to the Company, addressed to the Representative and dated as of the Closing Date, as applicable, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, an opinion, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Company Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to The Company shall have filed a Notification: Listing of Additional Shares with The Nasdaq Capital Market and received no objection thereto.
(l) The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, and (iviii) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated herebythreatened.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules) shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement shall be true and correct, and the representations and warranties of the Company contained in the certificates delivered pursuant to Section 3(d) shall be true and correct in all material respects, when made and on and as of each Closing Date as if made on such datedate (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects). The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative Underwriters and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct in all material respects when made and are true and correct as of such Closing DateDate (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects); (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) (1) as of the Effective Date the Registration Statement and did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (2) as of the date thereof or as of the date hereof the Prospectus did not includecontain and does not contain any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (3) as of the Applicable Time, neither (ix) the General Disclosure Package, nor (iiy) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Underwriters and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from E▇▇▇▇ & V▇▇ ▇▇▇▇▇▇ Voekler C▇▇LLP, counsel for the Company, an opinion and negative assurance letter, addressed to the Underwriters and dated such Closing Date, substantially in the form attached hereto as Exhibit C (which shall be subject to customary assumptions, exceptions, limitations and qualifications).
(g) The Representative shall have received on each Closing Date from Pillsbury W▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, an opinion, addressed to the Representative and dated such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel such documents as they request for enabling them to pass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto.
(j) The Company shall have delivered to the Representative executed copies of the Representative’s Warrant.
(k) The Shares shall have been approved for listing on the NASDAQ Capital MarketNYSE MKT, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any subsidiary or any material change in the indebtedness (other than in the ordinary course of businessbusiness consistent with past practice) of the Transaction EntitiesCompany or any of its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company or its subsidiaries that is not in the ordinary course of business consistent with past practice or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company or any subsidiary shall have been sustained that had or could reasonably be expected to have a Material Adverse Effectbe material to the Company or any subsidiary, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company, any of its subsidiaries or any of their respective properties that is material to the Transaction Entities Company or any of its subsidiaries or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, and the obligation of the Underwriters to purchase the Firm Shares or Option Shares, as the case may be, may be terminated by the Representative by notice to the Company at any time at or prior to Closing Date, and, except for an intentional or willful breach of this Agreement, such termination shall be without liability of any party to any other party except as provided in Section 4(b); provided, however, that Sections 4(b), 5, 6, 7 and 9 shall survive any such termination and remain in full force and effect.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (ix) the General Disclosure Package, nor (iiy) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler C▇Date from G▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler CT▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax LLP, counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, in the form attached to this Agreement as Exhibit B.
(g) The Representative shall have received on each Closing Date from U▇▇▇▇▇ Z▇▇▇▇▇, LLP, intellectual property counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, in the form attached to this Agreement as Exhibit C.
(h) The Representative shall have received on each Closing Date from Proskauer Rose LLP, counsel for the Representative, an opinion, addressed to the Representative and dated such Closing Date, which shall be reasonably satisfactory in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents (including a Secretary’s Certificate) as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become is effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (ix) the General Disclosure Package, nor (iiy) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from each of the Auditor Auditors addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from each of the Auditor Auditors addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as on each Closing Date from each of such Closing Date, of K▇▇▇▇▇▇ Voekler C& ▇▇▇▇▇▇▇, LLP and Meitar - Law Offices, counsel for the Company, an opinion and negative assurance statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(g) ▇▇▇▇▇▇▇▇▇ & F▇, ▇▇▇▇▇ PLC& ▇▇▇▇▇ LLP shall have furnished to the Underwriters such counsel’s written opinion and negative assurance statement, as intellectual property counsel to the Company, addressed to the Representative and dated the Closing Date, as applicable, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(gh) On each Closing Date, the The Representative shall have received on the favorable tax opinionClosing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, an opinion and/or negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, such documents as tax counsel they request for the Company, in form and substance reasonably satisfactory enabling them to counsel for the Underwriterspass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their its counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent The Company shall have filed a Notification: Listing of Additional Shares with Nasdaq to satisfy the execution and delivery of this Agreement or, if earlier, Company’s notification obligation under Nasdaq Listing Rule 5250(e)(2).
(l) The Representative shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to would result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to would have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, the Representative shall have received a letter from the Corporate Financing Department of FINRA issued in connection with the Base Prospectus and FINRA shall not have confirmed that it has not raised any objection with respect to the fairness and or reasonableness of the underwriting terms and agreements in connection with terms, or other arrangements of the Offeringtransactions, contemplated hereby.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇Ellenoff G▇▇▇▇▇▇▇ & FSchole LLP, as counsel to the Company, and Ober, Kaler, G▇▇▇▇▇ PLC& S▇▇▇▇▇▇, a Professional Corporation, as special Maryland counsel to for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇Ellenoff G▇▇▇▇▇▇▇ & F▇▇▇▇ PLCSchole LLP, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) On each Closing Date, there shall have been furnished to the Underwriters the negative assurance letter of L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC, counsel to the Underwriters, dated such Closing Date, as applicable, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto.
(jk) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(kl) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mn) All of the transactions that are to occur in order to consummate the Formation Transactions shall have been, or shall be substantially concurrently with the Closing Date, consummated on terms described in the General Disclosure Package.
(o) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (West Coast Realty Trust, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement Agreement, and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in their capacity as such officers, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with on the execution of this Agreement date hereof, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from H▇▇▇▇ Lovells US LLP, counsel for the favorable opinionCompany, an opinion and a negative assurance letter, addressed to the Representative and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇Sunstein Kann M▇▇▇▇▇ & F▇▇▇▇ PLCTimbers LLP shall have furnished to the Underwriters such counsel’s written opinion, as tax intellectual property counsel for to the Company, addressed to the Representative and dated as of the Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, an opinion, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to The Company shall have submitted a Notification: Listing of Additional Shares with Nasdaq and received no objection thereto.
(l) The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, the Representative shall have received a letter from FINRA issued in connection with the Base Prospectus and FINRA shall not have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with agreements, or other arrangements of the Offeringtransactions, contemplated hereby which has not been resolved to the reasonable satisfaction of the Representative on or before the Closing Date.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective been filed shall have been received by the Representative Representative, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor each of P&M and CGC addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Disclosure PackageProspectus, and (ii) on each Closing Date, a signed letter from the Auditor each of P&M and CGC addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Prospectus, provided, that such letter delivered on the Firm Shares Closing Date and as of each Option Shares Closing Date (if any), shall use a “cut-off” date no more than two business days prior to the Firm Shares Closing Date and each Option Shares Closing Date (if any).
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler C▇Date from ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as counsel to for the Company, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received the favorable tax opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇▇ Voekler C▇. ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax P.C., Colorado local counsel for the Company, an opinion letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from White & Case LLP, counsel for the Representative, an opinion and negative assurance letter, addressed to the Representative and dated such Closing Date in form and substance reasonably satisfactory to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing on the NASDAQ The Nasdaq Capital Market, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On or before the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Firm Shares Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or an Option Shares Closing Date (if any), prevent the issuance or sale of the Shares.
(o) The Representative shall have received on or prior to each Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing as a foreign entity in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(p) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents (including a Secretary’s Certificate) as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The Representative shall be satisfied that (i) the representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date; (ii) since the Effective Time, no event as occurred that should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment and (iii) since the respective dates as of which information is given in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, there has not been any material adverse change or any development involving a prospective material adverse change in the business, properties, financial condition or results of operations of the Company, and since such dates, the Company has not entered into any material transaction not referred to in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Applicable Time, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Applicable Time no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously received a certificate on each Closing Date signed by the Secretary of the Company to the effect that, as of the Closing Date the Secretary certifies as to the accuracy of the Company's charter and bylaws, the resolutions of the Board of Directors relating to the offering contemplated hereby, the form of stock certificate representing the Shares, and copies of all communications with the execution of this Agreement a signed letter from the Auditor addressed Commission; as to the Representative execution and dated the date delivery of this Agreement; as to the incumbency and signature of persons signing this Agreement, the Registration Statement and other related documents; as to the approval of the Shares for listing on the Nasdaq National Market; as to the Company's compliance with all agreements and performance or satisfaction of all conditions required hereunder; as to the consideration received for all outstanding shares of the Company's Common Stock; and as to such other matters as Underwriters' counsel may reasonably request.
(f) The Representative shall have been furnished evidence in the usual written or electronic form and substance reasonably from the appropriate authorities of the several jurisdictions, or other evidence satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to good standing and qualifications of the financial statements Company.
(g) The Representative shall have received, at the time this Agreement is executed and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, Date a signed letter from the Auditor Schechter Dokken Kanter Andrews & Selcer Ltd. addressed to the Representative Represe▇▇▇▇▇▇▇ ▇n▇ ▇▇▇▇d, ▇▇▇▇e▇▇▇▇▇▇▇, t▇▇ ▇▇▇e of this Agreement and dated the date of each such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(fh) On each Closing Date, the The Representative shall have received a copy of a letter from Schechter Dokken Kanter Andrews & Selcer Ltd. addressed to the favorable opinionCompany, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇that their rev▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler Cthe ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCny's internal accounting controls, as tax counsel for to the extent they deemed necessary in establishing the scope of their examination of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection 's financial statements filed with the sale of the Firm Shares Registration Statement and the Option Shares as herein contemplated shall Prospectus, did not disclose any weakness in internal controls that they considered to be reasonably satisfactory in form and substance to the Representative and their counselmaterial weaknesses.
(i) The Representative shall have received copies on each Closing Date from Lewis and Roca LLP, counsel for the Company, an opinion, addressed to ▇▇▇ ▇epresentative and dated such Closing Date, and stating in effect that:
(i) Each of the Lock-up Agreements executed by Company and its subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation. Each of the Company and its subsidiary is duly qualified to transact business and is in good standing as a foreign corporation in each entity jurisdiction in which the character or person listed on Schedule IV heretolocation of its assets or properties or the nature of its business makes such qualification necessary, except where the failure to so qualify or to be in good standing, individually or in the aggregate, would not have a Material Adverse Effect.
(jii) The Shares shall have been approved for listing on Each of the NASDAQ Capital MarketCompany and its subsidiary has all requisite corporate power and authority to own, subject only lease and operate its properties and to official notice of issuanceconduct its business as now being conducted and as described in the Registration Statement and the Prospectus and with respect to the Company to enter into and perform its obligations under this Agreement and to issue and sell the Shares.
(kiii) Subsequent to The authorized, issued and outstanding capital stock of the execution and delivery of this Agreement or, if earlier, the dates Company is as of which information is given set forth in the Registration StatementStatement and the Prospectus under the caption "Capitalization" as of the dates stated therein and, the General Disclosure Package or the Prospectus: (i) since such dates, there shall not have has been any material no change in the capital stock of the Company except for subsequent issuances, if any, pursuant to this Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Prospectus; all of the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable and none of them was issued in violation of any preemptive or other similar right. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid and nonassessable, and no holder of the Shares is or will be subject to personal liability by reason of being such a holder. The issuance and sale of the Shares by the Company is not subject to any preemptive or other similar rights of any securityholder of the Company. Except as disclosed in the Registration Statement and the Prospectus, there are no preemptive or other rights to subscribe for or to purchase or any material change restriction upon the voting or transfer of any securities of the Company pursuant to the Company's Articles of Incorporation or by-laws or other governing documents or any agreements or other instruments to which the Company is a party or by which it is bound. Except as disclosed in the indebtedness (Registration Statement and the Prospectus, there is no outstanding option, warrant or other than right calling for the issuance of, and no commitment, plan or arrangement to issue, any share of stock of the Company or any security convertible into, exercisable for, or exchangeable for stock of the Company. The Common Stock, and the Shares conform in all material respects to the descriptions thereof contained in the ordinary course Registration Statement and the Prospectus. The form of business) certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Transaction EntitiesArticles of Incorporation or By-laws of the Company and the requirements of the Nasdaq National Market. There are no persons with registration rights or other similar rights to have any securities registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act.
(iv) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, (ii) delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly authorized, executed and delivered by the Company and this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as set forth such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
(v) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) nor the execution, delivery or performance of any other agreement or instrument entered into or to be entered into by the Company in connection with the transactions contemplated by the Registration StatementStatement and the Prospectus will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company or any Subsidiary pursuant to the terms of, any indenture, mortgage, deed trust, note or other agreement or instrument to which the Company or its subsidiary is a party or by which either the Company or its subsidiary or any of their assets or properties or businesses is bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation, domestic or foreign, of which such counsel is aware, including but not limited to the Nevada Gaming Control Act and the rules and regulations promulgated thereunder (the "Nevada Gaming Laws") or orders or decrees issued by any governmental authority which interprets or implements the Nevada Gaming Laws, or violate any provision of the charter or by-laws of the Company or its subsidiary.
(vi) No consent, approval, authorization, license, registration, qualification or order of any court, governmental, gaming or other regulatory agency or body is required for the due authorization, execution, delivery or performance of this Agreement by the Company or the consummation of the transactions contemplated hereby or thereby, except such as have been obtained under the Nevada Gaming Laws, the General Disclosure Package Securities Act and such as may be required under state securities or Blue Sky laws in connection with the Prospectuspurchase and distribution of the Shares by the several Underwriters.
(vii) Under the Nevada Gaming Laws, no material oral Underwriter is required, solely by reason of and as a condition to its execution and delivery of this Agreement, nor is any purchaser of Common Stock from the Underwriters in connection with the offering contemplated by this Agreement required, solely by reason of being such, to be found suitable or written agreement licensed by any governmental agency or authority that adopts, enforces, supervises, implements or interprets the Nevada Gaming Laws.
(viii) To the best of such counsel's knowledge, there is no action, suit, proceeding or other transaction shall have been entered into investigation, before any court or before or by any public body or board pending or threatened against, or involving the Transaction Entities that assets, properties or businesses of, the Company which is required to be disclosed in the Registration Statement and the Prospectus and is not in the ordinary course of business so disclosed or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or which could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lix) On The statements in the Firm Prospectus under the captions "Risk Factors -- Failure of the Nevada Gaming Commission to adopt regulations under the Nevada Mobile Gaming Law in the near future will preclude us from implementing our growth strategy," "Risk Factors -- Our failure to obtain approvals under the regulations promulgated under the Nevada Mobile Gaming Law will preclude us from implementing our growth strategy," "Risk Factors -- Our failure to obtain gaming licenses or other regulatory approvals in other jurisdictions would preclude us from expanding our operations," "Risk Factors -- Our inability to comply fully, or at all, with the expected mobile gaming regulations may result in substantial additional development costs and preclude us from executing our growth strategy," "Risk Factors -- Our failure to maintain our current licenses and regulatory approvals or failure to maintain or obtain licenses or approvals for our gaming devices in any jurisdiction will prevent us from operating in this, and possibly other jurisdictions, leading to overall reduced revenue" "Risk Factors -- Our failure to comply with tribal regulation and tribal laws will preclude us from operating in tribal jurisdictions and deriving revenue therefrom," "Risk Factors -- Revocation of the approval of the Nevada gaming authorities for this offering would delay or prevent this offering," "Description of Capital Stock," "Business -- Government Regulations," "Business -- Legal Proceedings," "Shares Closing DateEligible for Future Sale" and "Certain Relationships and Related Transactions," insofar as such statements constitute a summary of documents referred to therein or matters of law, FINRA shall have confirmed that it has not raised any objection are accurate in all material respects and accurately present the information with respect to the fairness such documents and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.matters. Acc
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become shall be effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430ARules 430A or 430B, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule Rules 430A or 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Rules 430A and 430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct in all material respects when made and on and as of each Closing Date as if made on such date; provided, however, that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified by materiality or Material Adverse Effect. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive officer or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in their capacities as such, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct in all material respects when made and are true and correct as of such Closing Date; provided, however, that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified by materiality or Material Adverse Effect; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingmisleading except for statements in or omissions in the Registration Statement, the Prospectus, the General Disclosure Package or any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, made in reliance upon and in conformity with the Underwriter Information, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus, which was not so set therein; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) since the Applicable Time, there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the favorable opinionCompany, an opinion and negative assurance statement, addressed to the Representative and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇in substantially the form attached hereto as Exhibit B.
(g) The Representative shall have received on each Closing Date from Polsinelli S▇▇▇▇▇▇▇ & F▇▇▇▇ PLCPC, as intellectual property counsel to for the Company, in form an opinion, addressed to the Representative and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each dated such Closing Date, in substantially the form attached hereto as Exhibit C.
(h) The Representative shall have received on each Closing Date a certificate, addressed to the favorable tax opinion, Representative and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇the executive vice president, regulatory affairs and quality assurance of the Company, in his or her capacity as such, in substantially the form attached hereto as Exhibit D.
(i) The Representative shall have received on each Closing Date from G▇▇▇▇▇▇ & F▇▇▇▇ PLCProcter LLP, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, an opinion, addressed to the Representative and dated such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(hj) All proceedings taken in connection with the sale of the Firm Shares Securities and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ik) The Representative shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV hereto.
(jl) The Shares Company shall have been approved for listing on filed a Notification: Listing of Additional Shares with the NASDAQ Capital Market with respect to the Shares and Warrant Shares and shall have received no objection thereto from the NASDAQ Capital Market, subject only to official notice of issuance.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth in or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding proceeding, foreign or domestic, affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(ln) On the Firm Shares Closing Date, The Underwriters shall not have received any unresolved objection from FINRA shall have confirmed that it has not raised any objection with respect as to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringissuance and sale of the Securities.
(mo) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief financial officer of the Company, in his or her capacity as such, in form and substance reasonably satisfactory to the Representative and its counsel.
(p) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the secretary of the Company, in his or her capacity as such, in form and substance reasonably satisfactory to the Representative and its counsel.
(q) The Company shall have duly and validly executed and delivered the warrant agreement in respect of the Warrants, which shall have been countersigned by the warrant agent in respect of the Warrants, and a copy of such warrant agreement shall have been delivered to the Representative.
(r) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from DLA Piper LLP (US), counsel for the favorable opinionCompany, an opinion and written statement, addressed to the Representatives and dated as of such Closing Date, of Kin form and substance as is set forth on Exhibit B attached hereto.
(g) The Representatives shall have received on each Closing Date from ▇▇▇▇▇▇▇ Voekler C▇ ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as in-house intellectual property counsel for the Company, an opinion and written statement, addressed to the CompanyRepresentatives and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the Underwritersas is set forth on Exhibit C attached hereto.
(gh) On each Closing Date, the Representative The Representatives shall have received the favorable tax opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler C▇▇Date from ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCProcter LLP, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, an opinion and written statement, addressed to the Representatives and dated such Closing Date, with respect to the validity of the Shares, the Registration Statement, the General Disclosure Package, the Prospectus and other related matters as the Representatives reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives and their counsel.
(ij) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(jk) The Shares shall have been approved for listing on the NASDAQ Capital Global Market, subject only to official notice of issuance.
(kl) Subsequent to The Representatives shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On As of the Firm Shares Closing Date, FINRA shall not have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Representatives shall have received on each Closing Date a Secretary’s Certificate of the Company.
(o) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become effective shall have been received by and at the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and Closing Date no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon A prospectus containing Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B Information shall have been transmitted to filed with the Commission for filing pursuant to in the manner and within the period required by Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, (without reliance on Rule 424(b)(8)) or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B. Any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(cb) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Representative shall have reasonably determined, and advised the Company, that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto contains an untrue statement of fact which, in the Representative’s reasonable opinion, is material, or omits to state a fact which, in the Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Issuer-Represented Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Timeeach Closing Date, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Issuer-Represented Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change Material Adverse Effect or any event that is likely to result in a Material Adverse Effect, whether or not arising from transactions in the assets, properties, condition, financial or otherwise, or in the results ordinary course of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholebusiness.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the each Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the each Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇Norton ▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCUS LLP, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax intellectual property legal opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax from intellectual property legal counsel for to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) On each Closing Date, the Representative shall have received the favorable legal opinion, dated as of such Closing Date, from British Virgin Island counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(i) On each Closing Date, there shall have been furnished to the Underwriters the negative assurance letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Underwriters, dated such Closing Date, as applicable, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(j) All proceedings taken in connection with the sale of the Firm Shares Securities and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements in form and substance reasonably satisfactory to counsel for the Underwriters executed by each entity or person listed on Schedule IV hereto.
(jl) The Shares Company shall have been approved for listing on taken no action designed to, or likely to have the effect of terminating the registration of the Common Stock and Warrants under the Exchange Act or delisting or suspending from trading the Common Stock and Warrants from the NASDAQ Capital Market, subject only to official notice nor has the Company received any information suggesting that the Commission or NASDAQ Capital Market is contemplating terminating such registration or listing. The Securities, the Warrants and shares of issuanceCommon Stock underlying the Warrants and Representative’s Warrants shall be DTC eligible.
(km) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany or its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(ln) On the Firm Shares Securities Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as required by this Agreement, the obligations of the Underwriters to consummate the Closing hereunder may be cancelled by the Representative after notice of such cancellation shall have be given to the Company in writing and the Company shall have been given a reasonable period of time to satisfy such condition (if such condition is capable of being satisfied).
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations hereunder shall be subject to the continuing accuracy of the Underwriters to purchase the Shares are subject to each representations and warranties of the Offerors herein as of the date hereof; the accuracy on and as of the Closing Date of the statements of officers of the Offerors made pursuant to the provisions hereof; and the performance by the Offerors on and as of the Closing Date of their respective covenants and obligations hereunder and to the following terms and further conditions:
(a) Notification that the The Registration Statement has shall have become effective shall have been received by not later than 5:00 p.m., Eastern Time, on the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) date of this Agreement or such later date and any material required time as shall be consented to be filed in writing by the Company pursuant to Rule 433(d) of Representative, and, at the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and Closing Date no stop order suspending the effectiveness of the Registration Statement shall be in effect have been issued and no proceedings for such that purpose shall have been instituted or shall be pending before or threatened contemplated by the Commission, Commission and any requests for additional information request on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) for additional information shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriters' Counsel. If the Company has Offerors have elected to rely upon Rule 430A430A of the Rules and Regulations under the Act, Rule 430A the price of the Capital Securities and any other information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations under the Act within the prescribed time period and period, and, prior to the Company Closing Date, the Offerors shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-post- effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties 430A of the Company contained in this Agreement Rules and in Regulations under the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing DateAct.
(db) The Representative shall not have received on each Closing Date a certificate, addressed to advised the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined Offerors that the Registration Statement, the Prospectusor any amendment thereto, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any contains an untrue statement of a material fact and did not omit that, in the Representative's opinion or in the opinion of Underwriters' Counsel, is material, or omits to state a fact that, in the Representative's opinion or in the opinion of Underwriters' Counsel, is material fact and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any supplement thereto, contains an untrue statement of fact that, in the Representative's opinion or in the opinion of Underwriters' Counsel, is material, or omits to state a fact that, in the Representative's opinion or in the opinion of Underwriters' Counsel, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) On the Closing Date the Representative shall have received from Underwriters' Counsel the favorable opinion to the effect that:
(i) the Capital Securities conform in all material respects to the description thereof contained in the Prospectus;
(ii) the Registration Statement is effective under the Act, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statementif applicable, the General Disclosure Package or filing of all pricing and other information has been timely made in the Prospectus; (iv) appropriate form under Rule 430A of the Rules and Regulations, and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued andissued, to their knowledge, and no proceedings for that purpose have been instituted or are pending under threatened by the Securities Act; Commission. Such counsel shall state that such counsel has participated in conferences with officers and (v) there other representatives of the Company, counsel for the Company, representatives of the independent certified public accountants for the Company and the Representative, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for, nor has not occurred any material adverse change in such counsel independently verified, the assetsaccuracy, properties, condition, financial completeness or otherwise, or in fairness of the results of operations, business affairs or business prospects (as described statements contained in the Registration Statement, the General Disclosure Package Statement and the Prospectus) of the Transaction Entities and their Subsidiaries considered Prospectus (except as a whole.
(e) The Representative shall have received: to matters referred to in subparagraph (i) simultaneously with the execution above of this Agreement a signed letter from the Auditor addressed Section 6(c)), no facts have come to the Representative attention of such counsel (relying as to materiality to a large extent upon the opinions of officers and dated other representatives of the Company) that lead them to believe that either the Registration Statement or any amendment thereto, at the time such Registration Statement or amendment became effective or any Preliminary Prospectus (other than information omitted pursuant to Rule 430A) or the Prospectus or any amendment or supplement thereto as of the date of this Agreement, in form and substance reasonably satisfactory such opinion contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters therein not misleading (it being understood that such counsel need express no view with respect to the financial statements and certain schedules and other financial information contained and statistical data included in any Preliminary Prospectus, the Registration Statement (including any exhibit thereto) or the Prospectus or any amendment or supplement thereto); and
(iii) each of the Preliminary Prospectuses, the Registration Statement and the Disclosure Package, Prospectus and any amendments or supplements thereto (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to other than the financial statements and certain schedules, related notes and other financial information contained and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the Registration Statement requirements of the Act and the ProspectusRules and Regulations.
(f1) On each the Closing Date, Date the Representative Underwriters shall have received the favorable opinion, dated as opinion of such Closing Date, of K▇▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC▇, as counsel to the CompanyOfferors, dated the Closing Date addressed to the Underwriters and in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date' Counsel, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.effect that:
(i) The Representative shall have received copies (A) the Company and each of the LockSubsidiaries are duly organized, validly existing and in good standing under the laws of their respective jurisdictions of organization, (B) the Company is duly registered as a bank holding company under the BHC Act, and (C) the Company is duly qualified as a foreign corporation and in good standing in each jurisdiction in which its ownership of property or the conduct of its businesses requires such qualification (except where the failure to so qualify would not have a Material Adverse Effect on the assets or properties, business, results of operations or financial condition of the Company, taken as a whole); all of the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued and are fully-up Agreements executed paid and non-assessable and are owned of record by each entity the Company; to such counsel's knowledge, based solely upon review of the Company's and Subsidiaries' stock records, the outstanding shares of capital stock of the Subsidiaries are owned by the Company free and clear of all liens, encumbrances and security interests and, to such counsel's knowledge, no options, warrants or person listed on Schedule IV hereto.other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into, or exchange any securities for, any shares of capital stock of or ownership interests in any of the Subsidiaries are outstanding;
(jii) the Company and each of the Subsidiaries have the corporate power to own, lease or hold their respective properties and to conduct their respective businesses as described in the Prospectus;
(iii) The Shares shall have been approved for listing on capital stock, Debentures and Guarantee of the NASDAQ Company and the Capital Market, subject only to official notice Securities of issuance.
(k) Subsequent the Trust conform in all material respects to the execution description thereof contained in the Prospectus under the captions "Capitalization," "Description of Subordinated Debentures," "Description of Guarantee," and "Description of Capital Securities." The capital stock of the Company authorized and issued as of June 30, 1999 is as set forth under the caption "Capitalization" in the Prospectus, has been duly authorized and validly issued, and is fully paid and nonassessable. To such counsel's knowledge, there are no outstanding rights, options or warrants to purchase, no other outstanding securities convertible into or exchangeable for, and no commitments, plans or arrangements to issue, any shares of capital stock of the Company or equity securities of the Trust, except as described in the Prospectus. To such counsel's knowledge, the Capital Securities are not and will not be subject to any preemptive rights under the Massachusetts Business Corporation Law or similar statutory rights. The issuance, sale and delivery of the Capital Securities and Debentures in accordance with the terms and conditions of this Agreement orand the Indenture have been duly authorized by all necessary actions of the Offerors. All of the Capital Securities have been duly and validly authorized and, if earlierwhen delivered in accordance with this Agreement will be duly and validly issued, fully paid and nonassessable, and will conform in all material respects to the dates as of which information is given description thereof in the Registration Statement, the General Disclosure Package Prospectus and the Trust Agreement; the certificates representing the Capital Securities are in the form attached as Exhibit A-1 to the Trust Agreement; and the Capital Securities have been approved for quotation on NASDAQ-NMS subject to official notice of issuance. There are no preemptive or other rights to subscribe for or to purchase, and no restrictions upon the voting or transfer of, any shares of capital stock or equity securities of the Offerors or the Prospectus: Subsidiaries pursuant to the corporate charter, by-laws or other governing documents (iincluding, without limitation, the Trust Agreement) there shall of the Offerors or the Subsidiaries, or, to the best of such counsel's knowledge, any agreement or other instrument to which either Offeror or any of the Subsidiaries is a party or by which either Offeror or any of the Subsidiaries may be bound. To the best of such counsel's knowledge, holders of securities of the Offerors either do not have any right that, if exercised, would require the Offerors to cause such securities to be included in the Registration Statement or any registration statement to be filed by the Company within 180 days of the date hereof or to require the Company to file a registration statement under the Act during such 180 day period, or have waived such right.
(iv) the Registration Statement is effective under the Act, and, if applicable, the filing of all pricing and other information has been timely made in the appropriate form under Rule 430A of the Rules and Regulations under the Act, and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted or, to such counsel's knowledge, threatened by the Commission;
(v) the Registration Statement and the Prospectus and any amendment or supplement thereto (other than the financial statements and schedules, related notes and other financial and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material change respects with the requirements of the Act and the Rules and Regulations under the Act; and to the best of such counsel's knowledge, there are no contracts, agreements, leases or other documents of a character required to be disclosed in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not so disclosed or filed;
(A) to such counsel's knowledge, there is not pending or threatened against the Offerors or any of the Subsidiaries, or involving any of their respective properties or businesses, any action, suit, proceeding, inquiry, investigation, litigation or governmental proceeding, domestic or foreign, that (y) is required to be disclosed in the Registration Statement and is not so disclosed (and such proceedings as are summarized in the Registration Statement are accurately summarized in all material respects), or (z) questions the validity of the capital stock or equity securities of the Company or the Trust, this Agreement, or any material change action taken or to be taken by the Offerors pursuant to or in connection with this Agreement and (B) no statute or regulation or legal or, to such counsel's knowledge, governmental proceeding required to be described in the indebtedness Prospectus is not described as required;
(vii) the Offerors have all requisite corporate and trust power and authority to enter into this Agreement and to consummate the transactions provided for herein; and this Agreement has been duly authorized, executed and delivered by the Offerors and constitutes the legal, valid and binding obligation of the Offerors enforceable in accordance with its terms. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Trust Agreement does not and will not result in any breach or violation of any of the material terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge, claim, pledge, security interest, or other encumbrance upon, any property or assets (tangible or intangible) of the Offerors or any of the Subsidiaries or the Capital Securities pursuant to the terms of (A) the corporate charter, operating agreement or by-laws, or other governing instrument (including without limitation the Trust Agreement) of the Offerors or any of the Subsidiaries, (B) to such counsel's knowledge, the Guarantee, the Indenture, any voting trust agreement or any stockholders agreement, or any indenture, mortgage, deed of trust, note, loan or credit agreement or other material agreement or instrument known to such counsel to which either of the Offerors or any of the Subsidiaries is a party or by which any of them is or may be bound or to which any of their respective properties or assets (tangible or intangible) is or may be subject, or (C) any statute, rule or regulation or, to such counsel's knowledge, any judgment, decree or order applicable to either of the Offerors or any of the Subsidiaries of any arbitrator, court, regulatory body or administrative agency or other governmental agency or body having jurisdiction over either of the Offerors or any of the Subsidiaries or any of their respective activities or properties, the violation of which would have a Material Adverse Effect;
(viii) each of the Indenture, the Trust Agreement and the Guarantee has been duly qualified under the Trust Indenture Act, has been duly authorized, executed and delivered by the Company, and is a valid and legally binding obligation of the Company enforceable in accordance with its terms;
(ix) the Debentures have been duly authorized, executed, authenticated and delivered by the Company, are entitled to the benefits of the Indenture and are legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms;
(x) no consent, approval, authorization or order of, and no filing with, any federal or state court, regulatory body, government agency or authority (other than in such as have been effected under the ordinary course of business) Act and the Exchange Act and such as may be required under Blue Sky or state securities laws or the rules of the Transaction EntitiesNASD in connection with the purchase and distribution of the Capital Securities by the Underwriters, (iias to which no opinion need be rendered) except as set forth or contemplated by is required in connection with the issuance of the Capital Securities pursuant to the Prospectus and the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course performance of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect this Agreement and the transactions contemplated hereby;
(xi) to such counsel's knowledge neither the Offerors nor any of the Subsidiaries is in violation of any term or provision of its corporate charter, operating agreement, or by-laws or other governing instrument (including without limitation the Trust Agreement);
(xii) the statements in the Prospectus (or incorporated therein by this Agreement shall reference) under the captions "Capitalization," "Description of Capital Securities," "Description of Subordinated Debentures," "Description of Guarantee," "Relationship Among the Capital Securities, the Subordinated Debentures and the Guarantee," "Certain Federal Income Tax Consequences," and "ERISA Considerations" have been instituted or threatened reviewed by such counsel, and (v) there shall not have been any material change in the assetsinsofar as they refer to statements of law, propertiesdescriptions of statutes, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.w
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters Underwriter under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become shall be effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430ARules 430A or 430B, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule Rules 430A or 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Rules 430A and 430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct in when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before each such Closing Date.
(d) The Representative Underwriter shall have received on each Closing Date a certificate, addressed to the Representative Underwriter and dated such Closing Date, of the chief executive officer or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in their capacities as such, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingmisleading except for statements in or omissions in the Registration Statement, the Prospectus, the General Disclosure Package or any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, made in reliance upon and in conformity with the Underwriter Information, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus, which was not so set therein; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) since the Applicable Time, there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative Underwriter shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Underwriter containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Underwriter shall have received the favorable opinionon each Closing Date from each of Zysman, dated as of such Closing DateAharoni, of K▇▇▇▇▇ Voekler C& Co. and Zysman, Aharoni, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCWorcester LLP, as counsel to counsels for the Company, opinions and negative assurance statements, addressed to the Underwriter and dated such Closing Date, in form and substance reasonably satisfactory forms acceptable to counsel for the UnderwritersUnderwriter.
(g) On each Closing Date, the Representative The Underwriter shall have received the favorable tax opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇ Voekler C▇▇▇▇▇ Zedek ▇▇▇▇▇▇ ▇▇▇▇▇▇, intellectual property counsel for the Company, an opinion, addressed to the Underwriter and dated such Closing Date, in form acceptable to the Underwriter.
(h) The Underwriter shall have received on each Closing Date from Faegre ▇▇▇▇▇ ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as tax counsel for the CompanyUnderwriter, in form an opinion, addressed to the Underwriter and substance dated such Closing Date, with respect to such matters as the Underwriter may reasonably satisfactory require, and the Company shall have furnished or provided access to such counsel of such documents as they request for the Underwritersenabling them to pass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Underwriter and their its counsel.
(ij) The Representative Underwriter shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV III hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent The Company shall have filed a Notification: Listing of Additional Shares with the NASDAQ Global Market with respect to the execution Securities and delivery of this Agreement or, if earlier, shall have received no objection thereto from the NASDAQ Global Market.
(l) The Underwriter shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the share capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth in or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding proceeding, foreign or domestic, affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that materially affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ Underwriter’s reasonable judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(lm) On the Firm Shares Closing Date, The Underwriter shall not have received any unresolved objection from FINRA shall have confirmed that it has not raised any objection with respect as to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringissuance and sale of the Securities.
(mn) The Underwriter shall have received on each Closing Date a certificate, addressed to the Underwriter and dated such Closing Date, of the chief financial officer of the Company, in his or her capacity as such, in form and substance reasonably satisfactory to the Underwriter and its counsel.
(o) The Underwriter shall have received on each Closing Date a certificate, addressed to the Underwriter and dated such Closing Date, of the secretary of the Company, in his or her capacity as such, in form and substance reasonably satisfactory to the Underwriter and its counsel.
(p) The Underwriter shall have received a certificate of Company counsel, addressed to the Underwriter, certifying as to certain actions by the shareholders of the Company under the Companies Law.
(q) The Company shall have furnished or caused to be furnished to the Representative Underwriter such further customary certificates or documents as the Representative Underwriter shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler C▇▇Date from Lucosky B▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as counsel for the Company, an opinion and negative assurance statement, addressed to the CompanyRepresentative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received on each Closing Date from [_____], intellectual property counsel for the favorable tax opinionCompany, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance satisfactory to the Representative.
(h) The Representative shall have received on the Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, a negative assurance statement, addressed to the Representative and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, such documents as tax counsel they request for the Company, in form and substance reasonably satisfactory enabling them to counsel for the Underwriterspass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto. In the event that O▇▇▇▇▇▇▇▇▇▇ & Co. Inc., in its sole discretion, agrees to release or waive any restriction set forth in a Lock-Up Agreement for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three (3) Business Days before the effective date of such release or waiver (which release or waiver shall be substantially in the Form found at Exhibit A-1 attached hereto), the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 attached hereto through a major news service at least two (2) Business Days before the effective date of the release or waiver.
(jk) The Shares shall have been approved for listing and quotation on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance, and the Company has taken no action designed to, or likely to have the effect of, delisting the Shares, nor has the Company received any notification that the Nasdaq Capital Market is contemplating terminating such listing.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in all material respects (except for such representatives and warranties qualified by materiality, which representations and warranties shall be true and correct in all respects) as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have each of them has carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in each of their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, Prospectus when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been but was not set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “bring-down comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as on each Closing Date from each of such Closing Date, of K▇▇▇▇▇ Voekler C▇G▇▇▇▇▇▇▇▇ & FT▇▇▇▇▇▇, P.A. and Meitar Liquornik G▇▇▇ ▇▇▇▇▇▇ PLCTal Law Offices, as counsel for the Company, an opinion and negative assurance statement, addressed to the CompanyRepresentative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative. In rendering such opinion, counsel for may rely, to the Underwritersextent they deem such reliance proper, as to matters of fact upon certificates of officers of the Company and of government officials, provided that counsel shall state their belief that they and you are justified in relying thereon.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇R▇▇▇▇▇▇▇ & F▇▇▇▇ PLC& Partners shall have furnished to the Underwriters such counsel’s written opinion and negative assurance statement, as tax intellectual property counsel for to the Company, addressed to the Representative and dated the Closing Date, as applicable, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) All proceedings taken in connection with The Representative shall have received on the sale of Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance Representative, an opinion and/or negative assurance statement, addressed to the Representative and their counseldated such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of such documents as they request for enabling them to pass upon such matters.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing quotation on the NASDAQ Capital Market, subject only to official notice of issuance. On or prior to the Firm Shares Closing Date, the Shares shall have been approved for listing on the TASE, subject to a final approval and the payment of listing fees, and the Underwriters shall have received a copy of such approval.
(k) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that materially affects or could reasonably be expected to materially affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(n) The Company acknowledges, understands and agrees that the Shares may be offered and sold in Israel only by the Underwriters and only to (i) such Israeli investors listed in the First Addendum to the Israeli Securities Law (the “Addendum”) who submit written confirmation to the Underwriters and the Company that such investor (A) falls within the scope of the Addendum, is aware of the meaning of same and agrees to it, and (B) is acquiring the Shares for investment for its own account or, if applicable, for investment for clients who are investors listed in the Addendum and in any event not as a nominee, market maker or agent and not with a view to, or for the resale in connection with, any distribution thereof (“Israeli Accredited Investors”).
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares and the Warrants are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such the Closing Date.
(d) The Representative shall have received on each the Closing Date a certificate, addressed to the Representative and dated such as of the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such the Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have he has carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their his opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their his knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeCompany.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such the Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on the favorable opinion, dated as of such Closing Date, of KDate from ▇▇▇▇▇ Voekler C▇▇Lovells US LLP, counsel for the Company, an opinion and negative assurance letter, addressed to the Representative and dated as of the Closing Date, which shall be reasonably satisfactory in form and substance to the Representative.
(g) The Representative shall have received on the Closing Date from ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax intellectual property counsel for the Company, an opinion, addressed to the Representative and dated as of the Closing Date, which shall be reasonably satisfactory in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on the Closing Date from White & Case LLP, counsel for the Representative, an opinion and negative assurance letter, addressed to the Representative and dated as of the Closing Date, which shall be reasonably satisfactory in form and substance to the Representative.
(i) The Representative shall have received on and as of (i) the date hereof and (ii) the Closing Date a certificate of the principal financial officer of the Company confirming certain financial information included in the Preliminary Prospectus and the Prospectus, which shall be reasonably satisfactory in form and substance to the Representative.
(j) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Warrants as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jl) The Company has submitted an Additional Listing Application with NYSE American with respect to the Shares shall have and Warrant Shares and NYSE American has raised no objection with respect to the listing of the Shares and Warrant Shares which has not been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuanceresolved.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares and the Warrants as contemplated hereby.
(ln) On or before the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares and the Warrants.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Rexahn Pharmaceuticals, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i1) the General Disclosure Package, nor (ii2) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler C▇Date from Pillsbury ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as tax U.S. special securities counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, the form of which is attached as Exhibit D and to such further effect as the U.S. counsel for the Underwriters shall reasonably request.
(g) The Representative shall have received on each Closing Date from ▇▇▇▇▇ and Roca LLP, Nevada counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, the form of which is attached as Exhibit E and to such further effect as the U.S. counsel for the Underwriters shall reasonably request.
(h) The Representative shall have received on each Closing Date from ▇▇▇▇▇▇, Westwood & Riegels, British Virgin Islands counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, the form of which is attached as Exhibit F and to such further effect as the U.S. counsel for the Underwriters shall reasonably request.
(i) The Representative shall have received on the Firm Shares Closing Date from Robertsons Solicitors, Hong Kong counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, the form of which is attached as Exhibit G and to such further effect as the U.S. counsel for the Underwriters shall reasonably request.
(j) The Representative shall have received on the Firm Shares Closing Date from Tian Yuan Law Firm, PRC counsel for the Company, a letter, addressed to the Representative and dated such Closing Date, permitting them to rely on such firm's opinion addressed to the Company, the form of which is attached as Exhibit H, as if such opinion had been addressed to them, and to such further effect as the U.S. counsel for the Underwriters shall reasonably request.
(k) The Representative shall have received on each Closing Date from ▇▇▇▇▇ Day, counsel for the Representative, an opinion, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the Underwriters.
(hl) The Representative shall have received on the Firm Shares Closing Date from Grandall Legal Group (“Grandall”), PRC counsel for the Underwriters, an opinion, addressed to the Representative and dated such Closing Date, in form and substance satisfactory to the Underwriters.
(m) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(in) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jo) The Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(kp) Subsequent to The Representative shall have received copies of the execution and delivery of this Agreement or, if earlier, Co-Sale Waivers executed by each investor that signed the SPA.
(q) The Representative shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could would reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could would reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lr) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(ms) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (China Power Technology, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that all filings related to the Registration Statement has become effective shall have been received by Statement, the Representative Prospectus, and the Prospectus shall have been timely filed with offering of the Commission in accordance with Section 4(a) of this Agreement and any material Shares required to be filed by the Company pursuant to Rule 433(d) 424 of the Rules shall have been timely filed with the Commission in accordance with such rulemade.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date a signed letter from the Auditor KPMG LLP addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the consolidated financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from G▇▇▇▇▇, D▇▇▇ Voekler & C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as LLP, counsel to for the Company, an opinion, addressed to the Representatives and dated such Closing Date, and stating in form effect that:
(i) Neither the execution, delivery and substance reasonably satisfactory performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will violate or conflict with, or result in any contravention of the laws, rules and regulations of the State of New York and the federal laws of the United States of America that are, in our experience, generally applicable to counsel transactions of the nature contemplated hereby.
(ii) No consent, approval, authorization, license, registration, qualification or order of any court or governmental agency or regulatory body is required for the due authorization, execution, delivery or performance of this Agreement by the Company or the consummation of the transactions contemplated hereby, except such as have been obtained under the Securities Act and such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters.
(giii) On each Closing DateTo the best of such counsel’s knowledge, there is no action, suit, proceeding or other investigation, before any court or before or by any public body or board pending or threatened against, or involving the assets, properties or businesses of, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory Company which is required to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given disclosed in the Registration Statement, Statement and the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that Prospectus and is not in the ordinary course of business so disclosed or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or which could reasonably be expected to have a Material Adverse Effect, .
(iv) The Registration Statement, all Preliminary Prospectuses and the Prospectus and each amendment or supplement thereto (except for the consolidated financial statements and schedules and other financial data included therein, as to which such counsel expresses no legal opinion) comply as to form in all material respects with the requirements of the Securities Act and the Rules and the documents incorporated by reference in the Registration Statement, all Preliminary Prospectuses and the Prospectuses and the documents incorporated therein, and any further amendment or governmental actionsupplement to any such incorporated document made by the Company (except for the consolidated financial statements and schedules and other financial data included therein, suit as to which such counsel expresses no opinion) when they became effective or proceeding affecting were filed with the Transaction Entities Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or any the Exchange Act, as applicable, and the rules and regulations of their properties the Commission thereunder.
(v) The Registration Statement is effective under the Securities Act, and to such counsel’s knowledge no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall purpose have been instituted or threatened are threatened, pending or contemplated. Any required filing of the Prospectus and (vany supplement thereto pursuant to Rule 424(b) there shall not have under the Securities Act has been any material change made in the assets, properties, condition (financial or otherwisemanner and within the time period required by such Rule 424(b), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lvi) On The Shares have been approved for listing on the Firm Shares Closing DateNew York Stock Exchange.
(vii) The Company is not an “investment company” or an entity controlled by an “investment company” as such terms are defined in the Investment Company Act of 1940, FINRA as amended.
(viii) The statements in the Prospectus under the captions “Description of Debt Securities” and “Description of Warrants” insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate in all material respects and accurately present the information with respect to such documents and matters.
(ix) The form of certificate used to evidence the Common Stock complies in all material respects with the requirements of the New York Stock Exchange. To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representatives as to matters which are governed by laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the Federal laws of the United States; provided that such counsel shall state that in its opinion the Underwriters and it are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representatives and counsel for the Underwriters. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the Representatives and representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus (except as specified in the foregoing opinion), on the basis of the foregoing, no facts have confirmed come to the attention of such counsel which lead such counsel to believe that (i) the Registration Statement at the time it has not raised any objection became effective (except with respect to the fairness consolidated financial statements and reasonableness notes and schedules thereto and other financial data, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus as amended or supplemented (except with respect to the consolidated financial statements, notes and schedules thereto and other financial data, as to which such counsel need make no statement) on the date thereof contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the underwriting terms and agreements circumstances under which they were made, not misleading or (ii) any document incorporated by reference in connection the Prospectus or any further amendment or supplement to any such incorporated document made by the Company, when it became effective or was filed with the OfferingCommission, as the case may be, contained, in the case of a registration statement which became effective under the Securities Act, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or, in the case of other documents which were filed under the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(mg) The Company Representatives shall have furnished received on each Closing Date from W▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., Secretary and General Counsel of the Company (except, with respect to (i) and (ii) of this paragraph (g), as otherwise covered by foreign counsel as contemplated by paragraph (h) below), an opinion, addressed to the Representatives and dated each such Closing Date, and stating in effect that:
(i) Each of the Company and its subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation. Each of the Company and its subsidiaries is duly qualified to transact business and is in good standing as a foreign corporation in the jurisdictions set forth on Schedule [ ], except where the failure to so qualify or caused to be furnished in good standing, individually or in the aggregate, would not have a Material Adverse Effect.
(ii) Each of the Company and its subsidiaries has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as now being conducted and as described in the Registration Statement and the Prospectus and, with respect to the Representative Company, to enter into and perform its obligations under this Agreement and to issue and sell the Shares.
(iii) The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration Statement and the Prospectus under the caption “Capitalization” as of the dates stated therein and, since such further customary certificates dates, there has been no change in the capital stock of the Company except for subsequent issuances, if any, pursuant to this Agreement or pursuant to transactions, reservations, agreements or employee benefit plans referred to in the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Prospectus. The Shares to be issued and sold by the Company pursuant to this Agreement have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid and nonassessable, and no holder of the Shares is or will be subject to personal liability by reason of being such a holder. The issuance and sale of the Shares by the Company is not subject to any preemptive or other similar rights of any securityholder of the Company. To the best of such counsel’s knowledge, except as disclosed in the Registration Statement and the Prospectus, there are no preemptive or other rights to subscribe for or to purchase or any restriction upon the voting or transfer of any securities of the Company pursuant to the Company’s certificate of incorporation or by-laws or other governing documents or any agreements or other instruments to which the Company is a party or by which it is bound. To the best of such counsel’s knowledge, except as disclosed in the Representative shall Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue, any share of stock of the Company or any security convertible into, exercisable for, or exchangeable for stock of the Company. The Common Stock and the Shares conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus. The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the certificate of incorporation or by-laws of the Company. To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have reasonably requestedany securities registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act.
(iv) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares.
(v) This Agreement has been duly and validly authorized, executed and delivered by the Company.
(vi) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company or any subsidiary pursuant to the terms of, any indenture, mortgage, deed, trust, note or other agreement or instrument filed as an exhibit to the Company’s filings with the Commission under the Exchange Act.
(vii) No consent, approval, authorization, license, registration, qualification or order of any court or governmental agency or regulatory body pursuant to the laws of the State of Idaho is required for the due authorization, execution, delivery or performance of this Agreement by the Company or the consummation of the transactions contemplated hereby, except such as have been obtained u
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinionon each Closing Date from ▇▇▇▇▇▇, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C& ▇▇▇▇▇▇▇ LLP, counsel for the Company, an opinion and a negative assurance letter, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received on each Closing Date from ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, intellectual property counsel for the Company, an opinion and a negative assurance letter, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(h) The Representative shall have received on each Closing Date from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, FDA counsel for the Company, an opinion and a negative assurance letter, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) The Representative shall have received on each Closing Date from Ellenoff ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCSchole LLP, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing DateRepresentative, a negative assurance statement, addressed to the Representative shall have received the favorable tax opinion, and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, such documents as tax counsel they request for the Company, in form and substance reasonably satisfactory enabling them to counsel for the Underwriterspass upon such matters.
(hj) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jl) The Shares shall have been approved for listing quotation on the NASDAQ Capital MarketNasdaq, subject only to official notice of issuance.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Offered Units are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleRule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence reasonably satisfactory to the Underwriters Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and in all material respects on and as of each Closing Date as if made on such date; provided, however, that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality or Material Adverse Effect in the text thereof. The Company shall have performed all covenants and agreements in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in all material respects as of such Closing Date; provided, however, that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality or Material Adverse Effect in the text thereof; (ii) the Company has performed all of its covenants and agreements in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by the Company; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the date of this Agreement, which is the most recent Effective Date of the Registration Statement, the Registration Statement did not and as of its date, the Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and as of the times described above such documents did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the ProspectusProspectus that has not been so disclosed; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On The Representatives shall have received on each Closing Date from ▇▇▇▇▇▇ LLP, counsel for the Company, (i) an opinion, addressed to the Representatives and dated such Closing Date, stating in effect the Representative matters set forth on Exhibit B-1 hereto, and (ii) a negative assurance letter, addressed to the Representatives and dated such Closing Date, stating in effect the matters set forth on Exhibit B-2 hereto (each with appropriate modifications reasonably acceptable to the Representatives for any opinion or negative assurance letter delivered on any subsequent Closing Date).
(g) The Representatives shall have received on each Closing Date from K&L Gates LLP, intellectual property counsel for the favorable Company, an opinion, addressed to the Representatives and dated as of such Closing Date, stating in effect the matters set forth on Exhibit C hereto (with appropriate modifications reasonably acceptable to the Representatives for any opinion delivered on any subsequent Closing Date).
(h) The Representatives shall have received on each Closing Date a certificate, addressed to the Representatives and dated such Closing Date, of Kthe General Counsel of the Company, stating in effect the matters set forth on Exhibit D hereto (with appropriate modifications reasonably acceptable to the Representatives for any opinion delivered on any subsequent Closing Date).
(i) The Representatives shall have received from ▇▇▇▇▇▇ Voekler C▇▇& ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as counsel a favorable opinion, addressed to the Company, in form Representatives and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, covering such matters as are customarily covered in transactions of Kthis type, and the Company shall have furnished to ▇▇▇▇▇▇ Voekler C▇▇& ▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, LLP such documents as tax counsel they may reasonably request for the Company, in form and substance reasonably satisfactory purpose of enabling them to counsel for the Underwriterspass upon such matters.
(hj) All proceedings taken in connection with the sale of the Firm Shares Units and the Option Shares Optional Units as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counsel.
(ik) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jl) The Shares and Warrant Shares shall have been approved for listing on the NASDAQ Capital Global Market, subject only to official notice of issuance, and the Company shall not have received any notice that it is not in compliance with the listing or maintenance requirements of NASDAQ.
(km) Subsequent to The Representatives shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company (other than as a result of the exercise of outstanding stock options or other equity-based rights described in the Registration Statement, the Statutory Prospectus, the General Disclosure Package and the Prospectus) or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares Offered Units as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA The Representatives shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection received, simultaneously with the Offeringexecution of this Agreement, the executed Common Stock Purchase Agreement.
(mo) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleRule.
(b) No order preventing or suspending the use of any Preliminary the Base Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A430B, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and in all material respects on and as of each Closing Date as if made on such date; provided, however, that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality or Material Adverse Effect in the text thereof. The Company shall have performed all covenants and agreements in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in all material respects as of such Closing Date; provided, however, that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality or Material Adverse Effect in the text thereof; (ii) the Company has performed all of its covenants and agreements in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by the Company; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and as of the times described above such documents did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus. To the extent those sections of the comfort letter relating to the quarter ended September 30, 2010 do not cover the entire quarter, the Representatives shall have received a certificate, addressed to the Representatives and dated as of the date of each delivery of a comfort letter, of the chief financial officer of the Company, that covers those portions of the quarter ended September 30, 2010 that are not covered by the applicable comfort letter.
(f) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the favorable Company, (i) an opinion, addressed to the Representatives and dated as of such Closing Date, of Kstating in effect the matters set forth on Exhibit C-1 hereto, and (ii) a negative assurance letter, addressed to the Representatives and dated such Closing Date, stating in effect the matters set forth on Exhibit C-2 hereto.
(g) The Representatives shall have received on each Closing Date from ▇▇▇▇▇ Voekler C▇ ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to Esq., Senior Vice President and Chief Intellectual Property Officer of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax an opinion, addressed to the Representatives and dated as of such Closing Date, of Kstating in effect the matters set forth on Exhibit D hereto.
(h) The Representatives shall have received from ▇▇▇▇▇▇ Voekler C▇▇& ▇▇▇▇▇▇▇ & FLLP, a favorable opinion, addressed to the Representatives and dated such Closing Date, covering such matters as are customarily covered in transactions of this type, and the Company shall have furnished to ▇▇▇▇▇▇ PLC, & ▇▇▇▇▇▇▇ LLP such documents as tax counsel they may reasonably request for the Company, in form and substance reasonably satisfactory purpose of enabling them to counsel for the Underwriterspass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives and their counsel.
(ij) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing on the NASDAQ Capital MarketThe Nasdaq GM, subject only to official notice of issuance.
(kl) Subsequent to The Representatives shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company (other than as a result of the exercise of outstanding stock options or other equity-based rights described in the Registration Statement, the Statutory Prospectus, the General Disclosure Package and the Prospectus) or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares to be delivered on a Closing Date are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the reasonable satisfaction of the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The Representative shall be satisfied that (i) the representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each such Closing Date as if made on such date; (ii) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment as required by the Securities Act or the Rules and (iii) since the respective dates as of which information is given in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, there has not been any material adverse change in the business, properties, financial condition or results of operations of the Company. The Company shall have performed in all material respects all covenants and agreements agreements, and satisfied all the conditions other conditions, contained in this Agreement and required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein on or prior to such Closing Date; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not 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, and (B) since the Effective Date no event has occurred which as required by the Securities Act or the Rules should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the ProspectusProspectus and was not so set forth; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: received a certificate on each Closing Date signed by the Secretary of the Company to the effect that, as of such Closing Date the Secretary certifies as to (ii)(A) simultaneously the accuracy and completeness of the Company’s charter and bylaws, (B) the resolutions of the Board of Directors and any committee thereof relating to the offering contemplated hereby and the execution and delivery of this Agreement, (C) the form of stock certificate representing the Shares, and (D) copies of all communications with the execution Commission; (ii) the incumbency and signature of persons signing this Agreement, the Registration Statement and other related documents; (iii) the approval of the Shares for listing on the Nasdaq National Market, subject only to official notice of issuance; and (iv) such other matters as Underwriters’ counsel may reasonably request.
(f) The Representative shall have been furnished evidence in the usual written or electronic form from the appropriate authorities of the several jurisdictions, or other evidence satisfactory to the Representative, of the good standing and qualifications of the Company.
(g) The Representative shall have received, at the time this Agreement is executed and on each Closing Date a signed letter from the Auditor PricewaterhouseCoopers LLP addressed to the Representative and dated dated, respectively, the date of this Agreement, in form Agreement and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each such Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(fh) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCand ▇▇▇▇ LLP, as counsel to for the Company, in form and substance reasonably satisfactory an opinion, addressed to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, and dated as of such Closing Date, in the form attached hereto as Schedule III.
(i) The legality and sufficiency of Kthe sale of the Shares hereunder and the validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters incident to the foregoing, and the form of the Registration Statement and of the Prospectus (except as to the financial statements and financial information contained therein) shall have been approved at or prior to the Closing Date by ▇▇▇▇▇▇, ▇▇▇▇▇ Voekler C& Bockius LLP, counsel for the Underwriters. The Representative shall have received on each Closing Date from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP an opinion, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance addressed to the Representative and their counseldated such Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement and the Prospectus and such other related matters as the Underwriters reasonably may request and such counsel shall have received such documents and other information as they request to enable them to pass upon such matters.
(ij) The Representative shall have received copies of the Locklock-up Agreements agreements executed by each entity or person listed on Schedule IV heretothe directors, executive officers and holders of the Company’s outstanding capital stock, as contemplated by Section 2(n) of this Agreement.
(jk) The Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq National Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Voyager Pharmaceutical Corp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase and pay for the Firm Shares are and the Additional Shares, as provided herein, shall be subject to the accuracy of the representations and warranties of the Company and the Selling Shareholders herein contained, as of the date hereof and as of the Closing Date (for purposes of this Section 8, "Closing Date" shall refer to the Closing Date for the Firm Shares and any Additional Closing Date, if different, for the Additional Shares), to the absence from any certificates, opinions, written statements or letters furnished to you or to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") pursuant to this Section 8 of any material misstatement or omission, to the performance in all material respects by each of the Company and the Selling Shareholders of its or their obligations hereunder, and to the following terms and additional conditions:
(a) Notification that the The Registration Statement has shall have become effective not later than 5:30 P.M., New York time, on the date of this Agreement or at such later time and date as shall have been received consented to in writing by you; if the Representative and Company shall have elected to rely upon Rule 430A of the Regulations, the Prospectus shall have been timely filed with the Commission in a timely fashion in accordance with Section 4(a5(a) of this Agreement and any material required hereof; and, at or prior to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary ProspectusClosing Date, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof shall be in effect have been issued and no proceedings for such purpose therefor shall be pending before have been initiated or threatened by the Commission.
(b) At the Closing Date you shall have received the opinion of Kramer, Levin, Naftalis & ▇▇▇▇▇▇▇, counsel for the Company, dated the Closing Date addressed to the Underwriters and any requests for additional information in form and substance reasonably satisfactory to Underwriters' Counsel, to the effect that:
(i) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Florida. The Partnership has been duly organized and is validly existing as a limited partnership in good standing under the laws of the State of Delaware.
(ii) The Shares to be delivered by the Company on the part Closing Date or the Additional Closing Date have been duly and validly authorized and, when delivered by the Company in accordance with this Agreement, will be duly and validly issued, fully paid and non-assessable and will not have been issued in violation of the Commission (or subject to any preemptive rights. The Shares to be included delivered by the Selling Shareholders on the Closing Date or the Additional Closing Date have been duly and validly authorized and issued, are fully paid and non-assessable and were not issued in violation of or subject to any preemptive rights. The Common Stock, the Firm Shares and the Additional Shares conform to the descriptions thereof contained in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected Prospectus.
(iii) The Shares to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory be sold under this Agreement to the Underwriters are duly listed on The Nasdaq National Market.
(iv) This Agreement has been duly and validly authorized, executed and delivered by the Company.
(v) To the best of such timely counsel's knowledge, there is no litigation or governmental or other action, suit, proceeding or investigation before any court or before or by any public, regulatory or governmental agency or body pending or threatened against, or involving the properties or business of, the Company, any of its subsidiaries or the Partnership, which is of a character required to be disclosed in the Registration Statement and the Prospectus which has not been properly disclosed therein.
(vi) The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby by the Company do not and will not (A) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, any of its subsidiaries or the Partnership pursuant to, any agreement, instrument, franchise, license or permit referred to in or filed as an exhibit to the Registration Statement or otherwise known to such counsel to which the Company, any of its subsidiaries or the Partnership is a party or by which any of such entities or their respective properties or assets may be bound or (B) violate or conflict with any provision of the certificate of incorporation or by-laws or other organizational documents of the Company, any of its subsidiaries or the Partnership, or, to the best knowledge of such counsel, violate or conflict with any judgment, decree, order, statute (other than state securities or Blue Sky laws), rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over the Company, any of its subsidiaries or the Partnership or any of their respective properties or assets. No consent, approval, authorization, order, registration, filing, qualification, license or a permit of or with any court or any public, governmental, or regulatory agency or body having jurisdiction over the Company, any of its subsidiaries or the Partnership or any of their respective properties or assets is required for the execution, delivery and performance by the Company of this Agreement or the consummation by the Company of the transactions contemplated hereby, except for (1) such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters or pursuant to the Corporate Financing Rule of the National Association of Securities Dealers, Inc. (as to which such counsel need express no opinion) and (2) such as have been made or obtained under the Act.
(vii) The Registration Statement and the Prospectus and any amendments thereof or supplements thereto (other than the financial statements and schedules and other financial data included or incorporated by reference therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the Act and the Regulations.
(viii) The Registration Statement is effective under the Act, and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment providing thereof has been issued and, to the best knowledge of such information shall counsel, no proceedings therefor have been promptly filed initiated or threatened by the Commission and declared effective in accordance with the requirements of all filings required by Rule 430A.
(c424(b) The representations and warranties of the Company contained Regulations have been made. In addition, such opinion shall also state that although such counsel has not undertaken, except as otherwise indicated in this Agreement their opinions, to determine independently, and in does not assume any responsibility for, the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed accuracy or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, completeness of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company statements in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, such counsel has participated in the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as preparation of the Effective Date the Registration Statement and Prospectus did not includethe Prospectus, including a review and discussion of the contents thereof, and nothing has come to the attention of such counsel that has caused it to believe that the Registration Statement at the time the Registration Statement became effective (including the information deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430A(b), if applicable), or the Prospectus, as of its date and as of the Applicable TimeClosing Date or the Additional Closing Date, neither (i) as the General Disclosure Packagecase may be, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any contained an untrue statement of a material fact and did not omit or omitted to state a any material fact required to be stated therein or necessary to make the statements thereintherein (as to the Prospectus, in the light of the circumstances under which they were made, ) not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a misleading or that any amendment or supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; , as of its respective date, and as of the Closing Date or the Additional Closing Date, as the case may be, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein (ivas to the Prospectus, in the light of the circumstances under which they were made) not misleading (it being understood that such counsel need express no stop order suspending statement with respect to the effectiveness of financial statements and notes thereto and the schedules and other financial and statistical data included in the Registration Statement has been issued andor Prospectus). In rendering such opinion, such counsel may rely: (A) as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; extent such counsel deems proper and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreementextent specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters' Counsel, familiar with the Representativeapplicable laws; and (B) as to matters of fact, containing statements and information to the extent they deem proper, on certificates of responsible officers of the type ordinarily included Company and certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company and its subsidiaries, provided that copies of any such statements or certificates shall be delivered to Underwriters' Counsel. The opinion of such counsel for the Company shall state that the opinion of any such other counsel is in accountants’ “comfort letters” form satisfactory to underwriters with respect to such counsel and, in their opinion, you and they are justified in relying thereon.
(c) At the financial statements and certain financial information contained in Closing Date you shall have received the Registration Statement opinion of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, counsel for the Company and the Disclosure PackageSelling Shareholders, and (ii) on each dated the Closing Date, a signed letter from the Auditor Date addressed to the Representative Underwriters and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to Underwriters' Counsel, to the Representative containing statements and information effect that:
(i) Each of the type ordinarily included Company and its subsidiaries has been duly organized and is validly existing as a corporation in accountants’ “comfort letters” good standing under the laws of its jurisdiction of incorporation. The Partnership has been duly organized and is validly existing as a limited partnership in good standing under the laws of the State of Delaware. Each of the Company, its subsidiaries and the Partnership is duly qualified and in good standing as a foreign corporation or limited partnership, as the case may be, in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to underwriters be so qualified or in good standing which will not in the aggregate have a material adverse effect on the Company, its subsidiaries and the Partnership taken as a whole. Each of the Company, its subsidiaries and the Partnership has all requisite corporate or partnership authority, as the case may be, to own, lease and license its respective properties and conduct its business as now being conducted and as described in the Registration Statement and the Prospectus. All of the issued and outstanding capital stock of each corporate subsidiary of the Company has been duly and validly issued and is fully paid and non-assessable and was not issued in violation of pre-emptive rights and is owned directly or indirectly by the Company, free and clear of any lien, encumbrance, claim, security interest, restriction on transfer, shareholders' agreement, voting trust or other defect of title whatsoever. All of the outstanding limited and general partnership interests in the Partnership have been duly and validly issued and were not issued in violation of pre-emptive rights created by the Partnership, the Company or any applicable statute, law, rule or regulation and are owned directly or indirectly by the Company, free and clear of any lien, encumbrance, claim, security interest, restriction on transfer (other than those contained in the Partnership Agreement, as amended), voting trust or other defect of title whatsoever.
(ii) The Company has an authorized capital stock as set forth in the Registration Statement and the Prospectus. All of the outstanding shares of capital stock of the Company are duly and validly authorized and issued, fully paid and non-assessable and were not issued and are not now in violation of or subject to any preemptive rights. The Shares to be delivered by the Company on the Closing Date or the Additional Closing Date have been duly and validly authorized and, when delivered by the Company in accordance with respect this Agreement, will be duly and validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive rights. The Shares to be delivered by the Selling Shareholders on the Closing Date or the Additional Closing Date have been duly and validly authorized and issued, are fully paid and non-assessable and were not issued in violation of or subject to any preemptive rights. The Common Stock, the Firm Shares and the Additional Shares conform to the financial statements and certain financial information descriptions thereof contained in the Registration Statement and the Prospectus.
(fiii) On each Closing DateThis Agreement has been duly and validly authorized, executed and delivered by the Representative shall have received Company.
(iv) To the favorable opinion, dated as best of such Closing Datecounsel's knowledge, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCthere is no litigation or governmental or other action, as counsel to suit, proceeding or investigation before any court or before or by any public, regulatory or governmental agency or body pending or threatened against, or involving the properties or business of, the Company, any of its subsidiaries or the Partnership, which is of a character required to be disclosed in form the Registration Statement and substance reasonably satisfactory to counsel for the UnderwritersProspectus which has not been properly disclosed therein.
(gv) On each Closing DateThe execution, delivery, and performance of this Agreement and the Representative shall have received consummation of the favorable tax opiniontransactions contemplated hereby by the Company do not and will not (A) conflict with or result in a breach of any of the terms and provisions of, dated as or constitute a default (or an event which with notice or lapse of such Closing Datetime, or both, would constitute a default) under, or result in the creation or imposition of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCany lien, as tax counsel for charge or encumbrance upon any property or assets of the Company, any of its subsidiaries or the Partnership pursuant to, any agreement, instrument, franchise, license or permit referred to in form and substance reasonably satisfactory or filed as an exhibit to the Registration Statement or otherwise known to such counsel to which the Company, any of its subsidiaries or the Partnership is a party or by which any of such entities or their respective properties or assets may be bound or (B) violate or conflict with any provision of the certificate of incorporation or by-laws or other organizational documents of the Company, any of its subsidiaries or the Partnership, or, to the best knowledge of such counsel, any judgment, decree, order, statute (other than state securities or Blue Sky laws), rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over the Company, any of its subsidiaries or the Partnership or any of their respective properties or assets. No consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any court or any public, governmental, or regulatory agency or body having jurisdiction over the Company, any of its subsidiaries or the Partnership or any of their respective properties or assets is required for the Underwriters.
execution, delivery and performance by the Company of this Agreement or the consummation by the Company of the transactions contemplated hereby, except for (h1) All proceedings taken such as may be required under state securities or Blue Sky laws in connection with the sale purchase and distribution of the Firm Shares and by the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance Underwriters or pursuant to the Representative Corporate Financing Rule of the National Association of Securities Dealers, Inc. (as to which such counsel need express no opinion) and their counsel(2) such as have been made or obtained under the Act.
(ivi) The Representative shall have received copies This Agreement, the Power of Attorney and the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall Custody Agreement have been approved duly and validly authorized (for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection entities with respect to the fairness Power of Attorney and reasonableness the Custody Agreement), executed and delivered by each of the underwriting terms Selling Shareholders; the Power of Attorney and the Custody Agreement are legal, valid and binding agreements of each of the Selling Shareholders enforceable in connection accordance with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.their respec
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or “free writing prospectus” (as defined in Rule 405 of the Rules), shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive officer or chief operating officer and the chief financial officer or chief principal accounting officer of the Company Company, in such capacity, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they such officers have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, Package and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not includeopinion, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus and which event is not described in the Registration Statement, the Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed bringdown letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from H▇▇▇▇▇ Voekler Cand B▇▇▇▇ LLP, counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative and its legal counsel.
(g) The Representative shall have received on each Closing Date from Fenwick & West LLP, intellectual property counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative and their legal counsel.
(h) The Representative shall have received on each Closing Date from Sichenzia R▇▇▇ ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as tax counsel for the CompanyRepresentative, in form an opinion, addressed to the Representative and substance dated such Closing Date, with respect to such matters as the Representative may reasonably satisfactory require, and the Company shall have furnished or provided access to such counsel of such documents as they reasonably request for the Underwritersenabling them to pass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its legal counsel.
(ij) The Representative shall have received copies enforceable written lock-up agreements in the form attached to this Agreement as Exhibit A attached hereto (“Lock-Up Agreement”) executed by all directors, officers and holders of more than 5% of the Lock-up Agreements executed by each entity or person listed on Schedule IV heretooutstanding equity securities of the Company.
(jk) The Shares shall have been approved for listing on the NASDAQ Nasdaq Capital Market, subject only to official notice of issuance. A registration statement shall have been filed on Form 8-A pursuant to Section 12 of the Exchange Act, which registration statement shall comply in all material respects with the Exchange Act.
(kl) Subsequent to Since the execution and delivery date of this Agreement or, if earlier, the dates as most recent financial statements of which information is given the Company included in the Registration Statement, the General Disclosure Package or Package, the Statutory Prospectus and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, Company; (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could would reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, Company; (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to would have a Material Adverse Effect, ; (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that materially affects or could would reasonably be expected to materially affect the transactions contemplated by this Agreement shall have been instituted or threatened threatened; and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable in the Representative’ ’s reasonable judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On As of the Firm Shares Closing Datedate hereof, FINRA shall have confirmed that it has not raised any unresolved objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Stock or materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Stock or materially and adversely affect the business or operations of the Company.
(o) As of each Closing Date, the Representative shall have received a certificate of the Company signed by the Secretary of the Company, certifying: (i) that the Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions relating to the Offering are in full force and effect and have not been modified; and (iii) as to the incumbency of the officers of the Company to execute and deliver this Agreement and the Registration Statement.
(p) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase and pay for the Firm Shares are subject shall be subject, in the Underwriters' sole discretion, to each the accuracy of the representations and warranties of the Company and the Selling Shareholders contained herein as of the date hereof and as of the Firm Closing Date as if made on and as of the Firm Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following terms and additional conditions:
(a) Notification that If the Registration Statement registration statement, as heretofore amended, has become not been declared effective as of the time of execution hereof, the registration statement, as heretofore amended or as amended by an amendment thereto to be filed prior to the Firm Closing Date, shall have been received by declared effective not later than 5:30 P.M., New York City time, on the Representative date on which the amendment to such registration statement containing information regarding the initial public offering price of the Securities has been filed with the Commission, or such later time and the Prospectus date as shall have been timely consented to by the Underwriters; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in accordance with Section 4(athe manner and within the time period required by Rule 424(b) of this Agreement and any material required to be filed by under the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary ProspectusAct, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness of the Registration Statement shall be in effect have been issued, and no proceedings for such that purpose shall be pending before have been instituted or threatened or, to the knowledge of the Company or the Underwriters, shall be contemplated by the Commission, ; and the Company shall have complied with any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise).
(b) The Underwriters shall have been complied with received an opinion, dated the Firm Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the satisfaction Company, to the effect that:
(1) the Company and each Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the Commission jurisdiction of its organization and is duly qualified to transact business as a foreign corporation and is in good standing under the laws of each other jurisdiction in which its ownership or leasing of any properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a materially adverse effect upon the Company;
(2) the Company and each Subsidiary has full corporate power and authority to own or lease its property and conduct its business as now being conducted and as proposed to be conducted, as described in the Registration Statement and the Representative. If Prospectus, and the Company has elected full corporate power and authority to rely enter into this Agreement, the Warrant Agreement and the Underwriters' Warrant Agreement and to carry out all the terms and provisions hereof and thereof to be carried out by it;
(3) to the knowledge of such counsel, there are no outstanding options, warrants or other rights granted by the Company to purchase shares of its Common Stock, preferred stock or other securities other than as described in the Prospectus; the Shares have been duly authorized and the Warrant Shares and the Underwriters' Warrant Shares have been duly reserved for issuance by all necessary corporate action on the part of the Company and, the Shares when issued and delivered to and paid for by the Underwriters, pursuant to this Agreement, the Warrant Shares when issued upon Rule 430Apayment of the exercise price specified in the Warrants, Rule 430A information previously omitted from the effective Underwriters' Warrants when issued and delivered and paid for in accordance with this Agreement and the Underwriters' Warrant Agreement by the Underwriters and the Warrant Shares when issued upon payment of the exercise price specified in the Underwriters' Warrants, will be validly issued, fully paid, nonassessable and free of preemptive rights and will conform to the description thereof in the Prospectus; to the knowledge of such counsel, no holder of outstanding securities of the Company is entitled as such to any preemptive or other right to subscribe for any of the Shares, the Warrant Shares or the Underwriters' Warrant Shares; and to the knowledge of such counsel, no person is entitled to have securities registered by the Company under the Registration Statement or otherwise under the Act other than as described in the Prospectus;
(4) the execution and delivery of this Agreement, the Warrant Agreement, the Underwriters' Warrant Agreement and the Financial Advisory and Investment Banking Agreement have been duly authorized by all necessary corporate action on the part of the Company and this Agreement, the Warrant Agreement, the Underwriters' Warrant Agreement and the Financial Advisory and Investment Banking Agreement have been duly executed and delivered by the Company, and each is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other similar laws affecting creditors' rights generally and to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and except as rights to indemnity and contribution under this Agreement, the Warrant Agreement and the Underwriters' Warrant Agreement may be limited by applicable securities laws and the public policy underlying such laws;
(5) the Underwriters' Warrants conform to the description thereof in the Registration Statement and in the Prospectus and are duly authorized and upon payment of the purchase price therefore specified in Section 2(d) of this Agreement are validly issued and constitute valid and binding obligations of the Company entitled to the benefits of the Underwriters' Warrant Agreement; and the certificates representing the Securities are in due and proper form under the laws of Canada and any political subdivision thereof;
(6) the statements set forth in the Prospectus under the caption "Description of Securities" insofar as those statements purport to summarize the terms of the capital stock and warrants of the Company, provide a fair summary of such terms; the statements set forth in the Prospectus describing Canadian or provincial statutes and regulations and with respect to matters of Canadian or Ontario law, including the statements under the captions "Risk Factors - Classification of Physicians as Independent Contractors; Potential Tax Liability," "Risk Factors - Adverse Effect of Provincial Laws Regarding the Corporate Practice of Medicine," "Risk Factors - Corporate Exposure to Professional Liabilities," "Risk Factors - Government Regulations," "Business - Government Regulation," "Business - Proposed Healthcare Legislation," "Tax Aspects of the Offering - Canadian Federal Income Tax Considerations - Persons Not Resident Canada" and the descriptions of the consequences to the Company under such statutes and regulations are fair summaries of the information set forth therein and are accurate in all material respects; the statements in the Prospectus, insofar as those statements constitute summaries of the contracts, instruments, leases or licenses referred to therein, constitute a fair summary of those contracts, instruments, leases or licenses and include all material terms thereof, as applicable;
(7) none of (A) the execution and delivery of this Agreement, the Warrant Agreement and the Underwriters' Warrant Agreement, (B) the issuance, offering and sale by the Company to the Underwriters of the Securities pursuant to Rule 430A this Agreement and the Underwriters' Warrant Securities pursuant to the Underwriters' Warrant Agreement, nor (C) the compliance by the Company with the other provisions of this Agreement, the Warrant Agreement and the Underwriters' Warrant Agreement and the consummation of the transactions contemplated hereby and thereby, (1) requires the consent, approval, authorization, registration or qualification of or with any court or governmental authority known to us, except such as have been obtained and such as may be required under state blue sky or securities laws, (2) conflicts with or results in a breach or violation of, or constitutes a default under, any material contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other material agreement or instrument known to such counsel to which the Company is a party or by which the Company or any of its property is bound or subject, or the certificate of incorporation or by-laws of the Company, or any material statute or any judgment, decree, order, rule or regulation of any court or other governmental or regulatory authority known to us applicable to the Company, or (3) subjects the Company or investors in the Securities to any tax imposed by Canada or any political subdivision thereof.
(8) to the knowledge of such counsel, (A) no legal or governmental proceedings are pending to which the Company or a Subsidiary is a party or to which the property of the Company or a Subsidiary is subject and (B) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(9) the Company and each of the Subsidiaries possesses adequate licenses, orders, authorizations, approvals, certificates or permits issued by the appropriate Canadian, provincial or local regulatory agencies or bodies necessary to conduct its business as described in the Registration Statement and the Prospectus, and, to the knowledge of such counsel, there are no pending or threatened proceedings relating to the revocation or modification of any such license, order, authorization, approval, certificate or permit, except as disclosed in the Registration Statement and the Prospectus; and
(10) neither the Company nor any Subsidiary is in violation or breach of, or in default with respect to, any term of its certificate of incorporation or by-laws, and to the knowledge of such counsel, neither the Company nor any Subsidiary is in (i) violation in any material respect of any law, statute, regulation, ordinance, rule, order, judgment or decree of any court or any governmental or regulatory authority applicable to it, or (ii) default in any material respect in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other material agreement or instrument to which it is a party or by which it or any of its property may be bound or subject, and no event has occurred which with notice, lapse of time or both would constitute such a default.
(c) The Underwriters shall have been transmitted received an opinion, dated the Firm Closing Date, of Gersten, Savage, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the Commission Company, to the effect that:
(1) to the knowledge of such counsel, there are no outstanding options, warrants or other rights granted by the Company to purchase shares of its Common Stock, preferred stock or other securities other than as described in the Prospectus; and to the knowledge of such counsel, no person is entitled to have securities registered by the Company under the Registration Statement or otherwise under the Act other than as described in the Prospectus;
(2) the Shares have been approved for inclusion on The Nasdaq SmallCap Market and the Boston Stock Exchange;
(3) this Agreement, the Warrant Agreement, the Underwriters' Warrant Agreement and the Financial Advisory and Investment Banking Agreement have been duly executed and delivered by the Company, and each is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other similar laws affecting creditors' rights generally and to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and except as rights to indemnity and contribution under this Agreement, the Warrant Agreement and the Underwriters' Warrant Agreement may be limited by applicable securities laws and the public policy underlying such laws;
(4) none of (A) the execution and delivery of this Agreement, the Warrant Agreement and the Underwriters' Warrant Agreement, (B) the issuance, offering and sale by the Company to the Underwriters of the Securities pursuant to this Agreement and the Underwriters' Warrant Securities pursuant to the Underwriters' Warrant Agreement, nor (C) the compliance by the Company with the other provisions of this Agreement, the Warrant Agreement and the Underwriters' Warrant Agreement and the consummation of the transactions contemplated hereby and thereby, (1) requires the consent, approval, authorization, registration or qualification of or with any court or governmental authority known to us, except such as have been obtained and such as may be required under state blue sky or securities laws, or (2) conflicts with or results in a breach or violation of, or constitutes a default under, any material contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other material agreement or instrument known to us to which the Company is a party or by which the Company or any of its property is bound or subject, or any material statute or any judgment, decree, order, rule or regulation of any court or other governmental or regulatory authority known to us applicable to the Company;
(5) to the knowledge of such counsel, (A) no legal or governmental proceedings are pending to which the Company or a Subsidiary is a party or to which the property of the Company or a Subsidiary is subject and (B) no contract or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required;
(6) to the knowledge of such counsel, neither the Company nor any Subsidiary is in default in any material respect in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other material agreement or instrument to which it is a party or by which it or any of its property may be bound or subject, and no event has occurred which with notice, lapse of time or both would constitute such a default;
(7) the statements in the Prospectus under the caption "Description of Securities" in the Prospectus, insofar as such statements purport to summarize the terms of the capital stock and warrants of the Company, provide a fair summary of such terms; and the statements in the Prospectus, insofar as those statements constitute matters of law or legal conclusions, or summaries of the contracts, agreement instruments, leases or licenses referred to therein, constitute a fair summary of those matters, legal conclusions, contracts, agreement instruments, leases or licenses and include all material terms thereof as applicable;
(8) the Registration Statement is effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the prescribed time period required by Rule 424(b); and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued andissued, to their knowledge, and no proceedings for that purpose have been instituted or threatened or, to the best knowledge of such counsel, are pending under contemplated by the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.Commission;
(e9) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters registration statement originally filed with respect to the financial statements Securities and certain financial information contained in the Registration Statement each amendment thereto and the Disclosure PackageProspectus (in each case, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to other than the financial statements and certain schedules and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the Registration Statement applicable requirements of the Act and the Prospectus.rules and regulations of the Commission thereunder;
(f10) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change is not an "investment company" as defined in the indebtedness (other than in the ordinary course of businessSection 3(a) of the Transaction EntitiesInvestment Company Act and, (ii) except as set forth or contemplated by if the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.Company
Appears in 1 contract
Sources: Underwriting Agreement (Med Emerg International Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective and shall have been received by the Representative Representative, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement Agreement, and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed “comfort” letter from each of the Auditor Auditors addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed bringdown “comfort” letter from each of the Auditor Auditors addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from DLA Piper LLP (US), counsel for the favorable opinionCompany, an opinion and a negative assurance letter, addressed to the Representative and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each DLA Piper LLP (US) shall have furnished to the Underwriters such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Representative and dated as of the Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Companyapplicable, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, a negative assurance letter, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Company Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to The Company shall have filed a Notification: Listing of Additional Shares with The Nasdaq Capital Market and received no objection thereto.
(l) The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could would reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could would reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated herebyMaterial Adverse Effect.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares are Securities is subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Underwriter and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of either of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or or, to the knowledge of the Company, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Underwriter shall have received on each the Closing Date a certificate, addressed to the Representative Underwriter and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by the Company; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Underwriter shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative Underwriter containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Underwriter shall have received on the favorable opinionClosing Date from Ropes & ▇▇▇▇ LLP, counsel for the Company, an opinion and written statement, addressed to the Underwriter and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇in form and substance as is set forth on Exhibit B attached hereto.
(g) The Underwriter shall have received on the Closing Date from ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCProcter LLP, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing DateUnderwriter, an opinion and written statement, addressed to the Representative shall have received the favorable tax opinion, and dated as of such Closing Date, with respect to the validity of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCthe Securities, the Registration Statement, the General Disclosure Package, the Prospectus and other related matters as tax the Underwriter reasonably may request, and such counsel for the Company, in form shall have received such papers and substance reasonably satisfactory information as they request to counsel for the Underwritersenable them to pass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Underwriter and their counselcounsel for the Underwriter.
(i) The Representative Underwriter shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV III hereto.
(j) The Shares and the Warrant Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(k) Subsequent to The Underwriter shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the General Disclosure Package and the Prospectus, (i) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus: (i) , there shall not have been any material change in the capital stock of the Company (other than as a result or the exercise of outstanding stock options) or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, there shall not have been any material adverse change in the assets, properties, condition (financial or otherwise)condition, or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their its Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ Underwriter’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA the Company shall have confirmed that it has not raised any objection with respect furnished to the fairness and reasonableness Underwriter a Secretary’s Certificate of the underwriting terms and agreements in connection with the OfferingCompany.
(m) On the Closing Date, the Company shall have furnished to the Underwriter a Certificate of the Chief Financial Officer of the Company.
(n) The Company shall have furnished or caused to be furnished to the Representative Underwriter such further customary certificates or documents as the Representative Underwriter shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company and the Selling Shareholders contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company and the Selling Shareholders shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) On the date of the Prospectus prior to the execution of this Agreement and also on the Closing Date, the Chief Financial Officer or other senior financial officer of the Company shall have furnished to the Representative a certificate in form and substance satisfactory to the Representative as to the accuracy of certain numbers contained in the Prospectus, which numbers shall be set forth in a schedule attached to such certificate.
(f) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of each Selling Stockholder, to the effect that: (i) the representations, warranties and agreements of such Selling Shareholder in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) such Selling Shareholder has performed all covenants and agreements and satisfied all conditions contained herein; and (iii) such Selling Shareholder has carefully examined the Registration Statement and the Prospectus and, in the opinion of such Selling Shareholder, (A) with respect to the information relating to such Selling Shareholder, as of the Effective Date, the Registration Statement and Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred with respect to such Selling Shareholder which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement or the Prospectus.
(g) The Representative shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date a signed letter from the Auditor PriceWaterhouseCoopers LLP addressed to the Representative and dated dated, respectively, the date of this Agreement, in form Agreement and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each such Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(fh) On each Closing Date, the The Representative shall have received on each Closing Date from Stites & Harbison, PLLC, counsel for the favorable Company, an opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler Ca▇▇▇▇▇▇ed ▇▇ ▇▇▇ & F▇▇▇▇ PLC, as counsel to the Companyepresentative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(gi) On each Closing Date, the The Representative shall have received on the favorable tax opinionFirm Shares Closing Date from Stites & Harbison, dated as of such Closing DatePLLC, of Kcounsel for the Selling Shareholders, ▇▇ ▇▇▇nio▇▇ Voekler C, ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for ssed to the CompanyRepresentative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative.
(j) The Representative shall have received on each Closing Date from Skadden, Arps, Slate, Meagher & Flom, LLP, counsel for the UnderwritersRepresentative, an opinion, ▇▇▇▇▇sse▇ ▇▇ the Representative and dated such Closing Date, in form and substance satisfactory to the Representative.
(hk) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counselcounsel and the Underwriters shall have received from Skadden, Arps, Slate, Meagher & Flom LLP a favorable opinion, addressed to the Repres▇▇▇▇▇▇▇e a▇▇ ▇ated such Closing Date, with respect to the Shares, the Registration Statement and the Prospectus, and such other related matters, as the Representative may reasonably request, and the Company shall have furnished to Skadden, Arps, Slate, Meagher & Flom LLP such documents as they may reasonably reques▇ ▇▇▇ ▇he ▇▇▇▇ose of enabling them to pass upon such matters.
(il) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto.
(jm) The Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq National Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mn) The Company and each Selling Shareholder shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective and shall have been received by the Representative Representative, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement Agreement, and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on each Closing Date from D▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel for the favorable opinionCompany, an opinion and a negative assurance letter, addressed to the Representative and dated as of such Closing Date, of in form and substance reasonably satisfactory to the Representative.
(g) K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & FT▇▇▇▇▇▇▇ PLC& S▇▇▇▇▇▇▇ LLP shall have furnished to the Underwriters such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Representative and dated as of the Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(gh) On each Closing Date, the The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the favorable tax Representative, an opinion, addressed to the Representative and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(hi) All proceedings taken in connection with the sale of the Firm Shares Securities and the Company Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counselcounsel and the Shares shall have been delivered via the Depository Trust Company system to the accounts of the Underwriters. The Representative shall have received electronic copies of the Warrants executed by the Company.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent The Company shall have filed a Notification: Listing of Additional Shares with Nasdaq to satisfy the execution and delivery of this Agreement or, if earlier, Company’s notification obligation under Nasdaq Listing Rule 5250(e)(2).
(l) The Representative shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to would result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to would have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(lm) On the Firm Shares First Closing Date, the Representative shall have received a letter from the Corporate Financing Department of FINRA issued in connection with the Base Prospectus and FINRA shall not have confirmed that it has not raised any objection with respect to the fairness and or reasonableness of the underwriting terms and agreements in connection with terms, or other arrangements of the Offeringtransactions, contemplated hereby.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules) shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement shall be true and correct, and the representations and warranties of the Company contained in the certificates delivered pursuant to Section 3(d) shall be true and correct in all material respects, when made and on and as of each Closing Date as if made on such datedate (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects as of such Closing Date). The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative Underwriters and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in all material respects as of such Closing Date (provided, that each representation and warranty that contains a materiality qualifier shall be true and correct in all respects as of such Closing Date); (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) (1) as of the Effective Date the Registration Statement and did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (2) as of the date thereof or as of the date hereof the Prospectus did not includecontain and does not contain any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (3) as of the Applicable Time, neither (ix) the General Disclosure Package, nor (iiy) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred since the date of this Agreement any material adverse change in the assets, liabilities, properties, condition, condition (financial or otherwise), or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from each of the Auditor Auditors addressed to the Representative Underwriters and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from each of the Auditor Auditors addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from D▇▇ ▇▇▇▇▇▇ Voekler C▇▇LLP, counsel for the Company, an opinion and negative assurance letter, addressed to the Underwriters and dated such Closing Date, substantially in the form attached hereto as Exhibit B (which shall be subject to customary assumptions, exceptions, limitations and qualifications).
(g) The Representative shall have received on each Closing Date from Pillsbury W▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, an opinion, addressed to the Representative and dated such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel such documents as they request for enabling them to pass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(k) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus (except as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus: ), (i) there shall not have been any material change in the capital stock of the Company or any subsidiary or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany or any of its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company or its subsidiaries that is not in the ordinary course of business or that could would reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company or any subsidiary shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company, any of its subsidiaries or any of their respective properties that is material to the Transaction Entities Company or any of its subsidiaries or that affects or could would reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, liabilities, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On The Representative shall have received (i) simultaneously with the Firm Shares execution of this Agreement a certificate, addressed to the Underwriters and dated the date of this Agreement, of the chief financial officer of the Company addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, with respect to certain information contained in the Registration Statement and the General Disclosure Package and (ii) on each Closing Date, FINRA shall have confirmed that it has not raised any objection a certificate of the chief financial officer of the Company addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, with respect to certain information contained in the fairness Registration Statement and reasonableness of the underwriting terms and agreements in connection with the OfferingProspectus.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, and the obligation of the Underwriters to purchase the Firm Shares or Option Shares, as the case may be, may be terminated by the Representative by written notice to the Company at any time at or prior to the Closing Date, and, except for an intentional or willful breach of this Agreement, such termination shall be without liability of any party to any other party except as provided in Section 4(b); provided, however, that Sections 4(b), 5, 6, 7 and 9 shall survive any such termination and remain in full force and effect.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become shall be effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430ARules 430A or 430B, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule Rules 430A or 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Rules 430A and 430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive officer or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in their respective capacities as such, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been but was not set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinionon each Closing Date from ▇▇▇▇▇▇, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C& ▇▇▇▇▇▇▇ LLP, counsel for the Company, (i) an opinion addressed to the Representative and dated such Closing Date, which shall include substantially those opinions set forth on Exhibit B-1 hereto, and (ii) a negative assurance letter addressed to the Representative and dated such Closing Date, which shall substantially be the form as set forth on Exhibit B-2 hereto. To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representative as to matters which are governed by laws other than the laws of the State of New York, the Commonwealth of Pennsylvania, the General Corporation Law of the State of Delaware and the federal laws of the United States; provided that such counsel shall state that in their opinion that such counsel is relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representative and counsel for the Underwriters.
(g) The Representative shall have received on each Closing Date from Winston & ▇▇▇▇▇▇ LLP, intellectual property counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, which shall include substantially those opinions set forth on Exhibit C hereto. To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representative as to matters which are governed by laws other than the laws of the State of New York and the federal laws of the United States; provided that such counsel shall state that in their opinion that the Underwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representative.
(h) The Representative shall have received on each Closing Date from ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, an opinion, addressed to the Representative and dated such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel such documents as they request for enabling them to pass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing on the NASDAQ Capital MarketNASDAQ, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding proceeding, foreign or domestic, affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Representative shall have received on each Closing Date a certificate of the Company’s Senior Vice President, General Counsel, Human Resources & Secretary with respect to the regulatory affairs of the Company, substantially in the form of Exhibit D hereto.
(o) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or “free writing prospectus” (as defined in Rule 405 of the Rules), shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive officer or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in such capacity, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct in all material respects when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they such officers have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, Package and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not includeopinion, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus and which event is not described in the Registration Statement, the Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed bringdown letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇ LLP, counsel for the Company, an opinion and written negative assurances statement, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative and its legal counsel.
(g) The Representative shall have received on each Closing Date from ▇▇▇▇▇ Day LLP, intellectual property counsel to the Company, an opinion, addressed to the Representative and dated such Closing Date, in form and substance reasonably satisfactory to the Representative and their legal counsel.
(h) The Representative shall have received on each Closing Date from ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCTraurig, as counsel to the CompanyLLP, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing DateRepresentative, an opinion, addressed to the Representative shall have received the favorable tax opinion, and dated as of such Closing Date, with respect to such matters as the Representative may reasonably require, and the Company shall have furnished or provided access to such counsel of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, such documents as tax counsel they reasonably request for the Company, in form and substance reasonably satisfactory enabling them to counsel for the Underwriterspass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its legal counsel.
(ij) The Representative shall have received copies enforceable written lock-up agreements in the form attached to this Agreement as Exhibit A attached hereto (“Lock-Up Agreement”) executed by all directors, officers and certain holders of more than 5% of the Lock-up Agreements executed outstanding equity securities of the Company which have been agreed upon by each entity or person listed on Schedule IV heretothe Company and the Representative.
(jk) The Shares shall have been approved for listing on the NASDAQ Capital MarketOTCQB operated by OTC Markets Group, Inc., subject only to official notice of issuance.
(kl) Subsequent to Since the execution and delivery date of this Agreement or, if earlier, the dates as most recent financial statements of which information is given the Company included in the Registration Statement, the General Disclosure Package or Package, the Statutory Prospectus and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, Company; (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could would reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, Company; (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to would have a Material Adverse Effect, ; (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that materially affects or could would reasonably be expected to materially affect the transactions contemplated by this Agreement shall have been instituted or threatened threatened; and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable in the Representative’ ’s reasonable judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lm) On As of the Firm Shares Closing Datedate hereof, FINRA shall have confirmed that it has not raised any unresolved objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Shares or materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Shares or materially and adversely affect the business or operations of the Company.
(o) As of each Closing Date, the Representative shall have received a certificate of the Company signed by the Secretary of the Company, certifying: (i) that the Certificate of Incorporation and bylaws, each as amended, of the Company are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions relating to the Offering are in full force and effect and have not been modified; and (iii) as to the incumbency of the officers of the Company to execute and deliver this Agreement and the Registration Statement.
(p) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Mabvax Therapeutics Holdings, Inc.)
Conditions of the Underwriters’ Obligations. The obligations respective obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase and pay for the Shares are as provided herein shall be subject to each the accuracy of the representations and warranties of the Company, in the case of the Firm Shares as of the date hereof and the First Closing Date (as if made on and as of the First Closing Date) and in the case of the Option Shares, as of the date hereof and the Second Closing Date (as if made on and as of the Second Closing Date), to the performance by the Company of its obligations hereunder, and to the satisfaction of the following terms additional conditions on or before the First Closing Date in the case of the Firm Shares and conditionson or before the Second Closing Date in the case of the Option Shares:
(a) Notification that the The Registration Statement has shall have become effective not later than 5:00 P.M. Minneapolis time, on the first full business day following the date of this Agreement, or such later date as shall be consented to in writing by the Representative (the "Effective Date"). If the Company has elected to rely upon Rule 430A, the information concerning the price of the Shares and price-related information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been received by transmitted to the SEC for filing pursuant to Rule 424(b) within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative and the Prospectus of such timely filing (or a post-effective amendment providing such information shall have been timely promptly filed with the Commission and declared effective in accordance with Section 4(a) of this Agreement the 1933 Act and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) and Regulations). No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness thereof shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before Company or the Representative, threatened by the Commission, and SEC or any requests state securities commission or similar regulatory body. Any request of the SEC for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission Underwriters and their legal counsel. The NASD, upon review of the Representative. If terms of the Offering, shall not have objected to the terms of the Underwriters' participation in the Offering.
(b) The Representative shall not have advised the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from that the effective Registration Statement pursuant or Prospectus, or any amendment thereof or supplement thereto, contains any untrue statement of a fact which is material or omits to Rule 430A state a fact which is material and is required to be stated therein or is necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading; provided, however, that this Section 4(b) shall have been transmitted not apply to statements in, or omissions from, the Registration Statement or Prospectus, or any amendment thereof or supplement thereto, which are based upon and conform to written information furnished to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to by any of the Underwriters specifically for use in the preparation of such timely filingthe Registration Statement or the Prospectus, or a post-effective any such amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.or supplement.
(c) The representations Subsequent to the date as of which information is given the Registration Statement and warranties Prospectus, there shall not have occurred any change, or any development involving a prospective change, which materially and adversely affects the business or properties of the Company contained in this Agreement and which, in the certificates delivered pursuant to Section 3(d) shall be true reasonable opinion of the Representative, materially and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all adversely affects the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Datemarket for the Shares.
(d) The Representative shall have received on each the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, dated as of such respective Closing Date a certificate, addressed and satisfactory in form and substance to the Representative and dated such Closing Dateits counsel, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: :
(i) The Company and each of its subsidiaries has been duly organized and is validly existing in good standing under the representationslaws of the State of organization with the requisite power to own, warranties lease and agreements operate their properties and conduct their business as described in the Prospectus; and are duly qualified to do business in good standing in all jurisdictions where the ownership or leasing of its properties or the conduct of their business requires such qualification and in which the failure to be so qualified or in good standing would have a material adverse effect on its business and the activities of the Company or the respective subsidiary.
(ii) The number of authorized and, to the best of such counsel's knowledge, the number of issued and outstanding shares of capital stock of the Company are as set forth in the Prospectus, and all such capital stock has been duly authorized and is validly issued, fully paid and nonassessable. Upon delivery of and payment for the Shares hereunder, the Underwriters will acquire the Shares free and clear of all liens, encumbrances or claims. To the best knowledge of such counsel's knowledge, no preemptive rights, contractual or otherwise, of securities holders of the Company or others exist with respect to the issuance or sale of the Shares by the Company pursuant to this Agreement or to the issuance of Warrant Shares upon exercise of the Underwriters' Warrants. To the best of such counsel's knowledge, no rights to require registration of Shares of Common Stock or other securities of the Company exist which may be exercised in connection with the filing of the Registration Statement. The Shares, Underwriters' Warrants and Warrant Shares conform as to matters of law in all material respects to the description of these securities made in the Prospectus and such description accurately sets forth the material legal provisions thereof required to be set forth in the Prospectus.
(iii) The shares of Common Stock issuable upon conversion of the Shares have been duly authorized and reserved for issuance and when issued, sold and delivered in accordance with the terms of the Shares, will be validly issued, fully paid and nonassessable. The issuance, sale and delivery of the Underwriter's Warrant has been duly authorized and the Warrant Shares issuable upon the exercise thereof have been reserved for issuance upon such exercise. The Warrant Shares, when issued, sold and delivered in accordance with the terms of the Underwriter's Warrant, will be validly issued, fully paid and nonassessable. No preemptive rights of, or rights of refusal in favor of, shareholders of the Company exist with respect to the Shares (or any component thereof), the Underwriter's Warrant or the Warrant Shares, or the issue and sale thereof, pursuant to the Company's Declaration of Trust or Bylaws.
(iv) The authorized securities of the Company conform as to legal matters in all material respects to the description thereof set forth in the Prospectus under the caption "Description of Securities." The certificates representing the Shares are in proper form under the Maryland Trust Statute.
(v) The Registration Statement and the Prospectus comply as to form in all material respects with the requirements of the 1933 Act and with the Rules and Regulations, except the financial statements, the notes thereto and the related schedules and other financial and statistical data contained therein, as to which such counsel need not express an opinion.
(vi) Counsel knows of no contracts, leases or documents that are required to be described in the Prospectus or to be filed as exhibits to the Registration Statement that are not so described or filed.
(vii) The Underwriting Agreement, the underlying common stock and the Underwriter's Warrant have been duly authorized by all requisite corporate action, executed and delivered by the Company and constitute the valid and binding obligations of the Company enforceable in accordance with their respective terms.
(viii) The execution and delivery of the Underwriting Agreement and the issue and sale of the Underwriter's Warrant, the Shares and the Warrant Shares will not violate or conflict with the organizational documents or the Bylaws of the Company or any material provision of any material contract or instrument to which the Company is a party or by which the Company is bound, or any law of the United States or the State of Maryland, any rule or regulation of any governmental authority or regulatory body of the United States or the State of Maryland, or any judgment, order or decree known by such counsel and applicable to the Company of any court or governmental authority.
(ix) No holders of capital stock of the Company, or securities convertible into capital stock of the Company, have the right to cause the Company to include such holder's capital stock in the Registration Statement pursuant to the Company's organizational documents or Bylaws or any contract or agreement.
(x) No consent, approval, authorization or order of, and no notice to or filing with, any governmental agency or body or any court is required to be obtained or made by the Company for the issue and sale of the Shares pursuant to the Underwriting Agreement, except such as may be required and obtained under the 1933 Act or under state or other securities laws in connection with the purchase and distribution of the Shares by the Underwriter.
(xi) The Underwriter's Warrants has been duly authorized, executed and delivered by the Company and are the valid and binding obligations of the Company, enforceable in accordance with their terms, except as enforceability may be limited by the application of bankruptcy, insolvency, moratorium, or other laws of general application affecting the rights of creditors generally and by judicial limitations on the right of specific performance and other equitable remedies, and except as the enforceability of indemnification or contribution provisions hereof may be limited by federal or state securities laws. The Warrant Shares when issued in accordance with the terms of this and the Underwriter's Warrants will be validly issued, fully paid and nonassessable. A sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Underwriter's Warrants.
(xii) The Registration Statement has become and is effective under the 1933 Act, the Prospectus has been filed as required by Rule 424(b), if necessary and, to the best knowledge of such counsel, no stop orders suspending the effectiveness of the Registration Statement have been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the 1933 Act. The registration of the Company's securities on Form 8-A has become effective under the Securities Exchange Act of 1934, as amended, and no stop order suspending the effectiveness of such registration, and, to such counsel's knowledge, no proceedings for that purpose have been instituted or are pending by the Commission.
(xiii) To the best of such counsel's knowledge, there are no material legal or governmental proceedings of a character required by the 1933 Act and the Rules and Regulations to be described or referred to in the Registration Statement or Prospectus that are not described or referred to therein. All pending legal or governmental proceedings, if any, to which the Company is a party or to which any of its property is subject which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the Company.
(xiv) To the best of such counsel's knowledge, there are no material legal or governmental proceedings of a character required by the 1933 Act and the Rules and Regulations to be described or referred to in the Registration Statement or Prospectus that are not described or referred to therein. All pending legal or governmental proceedings, if any, to which the Company is a party or to which any of its property is subject which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the Company.
(xv) The Registration Statement, when it became effective, the Prospectus and any amendments thereof or supplements thereto, (other than the financial statements and supporting financial and statistical data included or incorporated therein, as to which such counsel need express no opinion) on the date of filing or the date thereof, complied as to form in all material respects with the requirements of the 1933 Act and the Rules and Regulations.
(xvi) This Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by the application of bankruptcy, insolvency, moratorium or similar laws affecting the rights of creditors generally and judicial limitations on the right of specific performance and except as the enforceability of indemnification or contribution provisions hereof may be limited by federal or state securities laws.
(xvii) To the best of such counsel's knowledge, the execution, delivery and performance of this Agreement and the consummation of the transactions described herein will not result in a violation of, or a default under, the terms or provisions of (A) any material bond, debenture, note, contract, lease, license, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument to which the Company is a party or by which the Company or any of its properties are bound, or (B) any material law, order, rule, regulation, writ, injunction, or decree known to such counsel of any government, governmental agency or court having jurisdiction over the Company or any of its properties. In expressing the foregoing opinion, as to matters of fact relevant to conclusions of law, counsel may rely, to the extent that they deem proper, upon certificates of public officials and of the officers of the Company, provided that copies of such officers' certificates are attached to the opinion. In addition to the matters set forth above, such opinion shall also include a statement to the effect that, although such counsel cannot guarantee the accuracy, completeness or fairness of any of the statements contained in the Registration Statement, Prospectus, or any amendment thereof or supplement thereto in connection with such counsel's representation, investigation and due inquiry of the Company in this Agreement were true and correct when made and are true and correct as the preparation of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, Prospectus and any individual Issuer Free Writing Prospectus andamendment thereof or supplement thereto, in their opinion (A) as nothing has come to the attention of the Effective Date such counsel which causes them to believe that the Registration Statement Statement, Prospectus and Prospectus did not includeany amendment thereof or supplement thereto (other than the financial statements and supporting financial and statistical data included or incorporated therein, and as of the Applicable Time, neither (ito which such counsel need express no opinion) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any contains an untrue statement of a material fact and did not omit or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under in which they were made, not misleading; provided, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement however, that such opinion of counsel does not require any statement concerning statements in, or otherwise required an amendment to omissions from, the Registration Statement, Prospectus, or any amendment thereof or supplement thereto, which are based upon and conform to written information furnished to the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness Company by any of the Registration Statement has been issued and, to their knowledge, no proceedings Underwriters specifically for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change use in the assets, properties, condition, financial or otherwise, or in the results preparation of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole, or any such amendment or supplement.
(e) The Representative shall have received: (i) simultaneously with received from Maun & Simon, PLC, its counsel, such opinion or opinions as the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance Underwriters may reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinionrequire, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form each closing date and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital MarketRepresentative, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness sufficiency of corporate proceedings and reasonableness of other legal matters relating to this Agreement and the underwriting terms transactions contemplated hereby, and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished said counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters. In connection with such opinion, as to matters of fact relevant to conclusions of law, such counsel may rely, to the extent that they deem proper, upon representations or certificates of public officials and of responsible officers of the Company.
(f) The Representative such further customary certificates or documents as and the Representative shall have reasonably requested.C
Appears in 1 contract
Sources: Underwriting Agreement (Wellington Properties Trust)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Offered Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has have become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus or Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (viv) there has not occurred any material adverse change in subsequent to the assets, properties, condition, end of the period covered by the latest audited financial or otherwise, or in the results of operations, business affairs or business prospects (as described statements included in the Registration Statement, the General Disclosure Package and the Prospectus) , there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Transaction Entities Company and their the Subsidiaries considered taken as a whole, and, to such officer’s knowledge, there has been no adverse legislative or regulatory developments related to the M&A Rules and Related Clarifications, except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each or prior to the Firm Shares Closing Date, the Firm Shares shall be eligible for clearance and settlement through the facilities of DTC.
(g) The Representative shall have received the favorable opinion, dated as on each Closing Date a written opinion of such Closing Date, of KCozen ▇’▇▇▇▇▇▇ Voekler CLLP, United States counsel for the Company, dated the Closing Date and addressed to the Underwriters substantially in form set forth in Exhibit C hereto.
(h) The Representative shall have received a written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax Cayman Islands counsel for the Company, dated the Closing Date and addressed to the Underwriters substantially in form set forth in Exhibit C hereto.
(i) The Representative shall have received a written opinion of JunZe Jun Law Offices, PRC counsel for the Company, dated the Closing Date and addressed to the Underwriters in form and substance reasonably satisfactory to the Representative.
(j) The Representative shall have received a written opinion of DLA Piper Italy, United States counsel for the Underwriters.
(h) All proceedings taken in connection with , dated the sale of Closing Date and addressed to the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory Underwriters in form and substance satisfactory to the Representative and their counselRepresentative.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto.
(jl) The Ordinary Shares shall have been approved for listing on the NASDAQ Capital Global Market, subject only to official notice of issuance.
(km) Subsequent FINRA shall have raised no objection to the execution fairness and delivery reasonableness of this Agreement orthe underwriting terms and arrangements.
(n) The Representative shall be reasonably satisfied that, if earlierexcept as set forth or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the share capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or or, to the Company’s knowledge, threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries the Subsidiaries, considered as a whole whole, that makes it impractical or inadvisable in the Representative’ ’s reasonable judgment to proceed with the purchase or offering of the Offered Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the several Underwriters to purchase and pay for the Shares are as provided herein shall be subject to each the accuracy of the representations and warranties of the Company, in the case of the Firm Shares as of the date hereof and the First Closing Date (as if made on and as of the First Closing Date) and in the case of the Option Shares, as of the date hereof and the Second Closing Date (as if made on and as of the Second Closing Date), to the performance by the Company of its obligations hereunder, and to the satisfaction of the following terms additional conditions on or before the First Closing Date in the case of the Firm Shares and conditionson or before the Second Closing Date in the case of the Option Shares:
(a) Notification that the The Registration Statement has shall have become effective not later than 5:00 P.M. Minneapolis time, on the first full business day following the date of this Agreement, or such later date as shall be consented to in writing by the Representative (the "Effective Date"). If the Company has elected to rely upon Rule 430A, the information concerning the price of the Shares and price-related information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been received by transmitted to the SEC for filing pursuant to Rule 424(b) within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative and the Prospectus of such timely filing (or a post-effective amendment providing such information shall have been timely promptly filed with the Commission and declared effective in accordance with Section 4(a) of this Agreement the 1933 Act and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) and Regulations). No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness thereof shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before Company or the Representative, threatened by the Commission, and SEC or any requests state securities commission or similar regulatory body. Any request of the SEC for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission Underwriters and their legal counsel. The NASD, upon review of the Representative. If terms of the Company has elected to rely upon Rule 430AOffering, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall not have been transmitted objected to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties terms of the Company contained in this Agreement and Underwriters' participation in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing DateOffering.
(db) The Representative shall not have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of advised the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date that the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing or Prospectus, when considered together with the General Disclosure Packageor any amendment thereof or supplement thereto, included, contains any untrue statement of a fact which is material fact and did not omit or omits to state a fact which is material fact and is required to be stated therein or is necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading; provided, however, that this Section 4(b) shall not apply to statements in, or omissions from, the Registration Statement or Prospectus, or any amendment thereof or supplement thereto, which are based upon and conform to written information furnished to the Company by any of the Underwriters specifically for use in the preparation of the Registration Statement or the Prospectus, or any such amendment or supplement.
(c) Subsequent to the date as of which information is given the Registration Statement and Prospectus, there shall not have occurred any change, or any development involving a prospective change, which materially and adversely affects the business or properties of the Company and which, in the reasonable opinion of the Representative, materially and adversely affects the market for the Shares.
(d) The Representative shall have received the opinion of Johnson, Killen, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. and the opinion of Lommen, Nelson, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A., counsel for the Company, dated as of such respective Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and its counsel, to the effect that:
(i) The Company has been duly incorporated and is validly existing in good standing under the laws of the State of Minnesota with the requisite corporate power to own, lease and operate its properties and conduct its business as described in the Prospectus; and is duly qualified to do business as a foreign corporation in good standing in all jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification and in which the failure to be so qualified or in good standing would have a material adverse effect on its business. The activities of the Company are permitted under the 1933 Act, the Rules and Regulations and other applicable laws.
(ii) The number of authorized, issued and outstanding shares of capital stock of the Company are as set forth under the caption "Capitalization" in the Prospectus. The outstanding shares of capital stock of the Company have been duly authorized and validly issued, and (B) since are fully paid and nonassessable. Upon delivery of and payment for the Effective Date Shares hereunder, the Underwriters will acquire the Shares free and clear of all liens, encumbrances or claims. To the best of such counsel's knowledge, no event has occurred preemptive rights, contractual or otherwise, of securities holders of the Company exist with respect to the issuance or sale of the Shares by the Company pursuant to this Agreement or the issuance of the Warrant Shares upon exercise of the Representative's Warrants. To the best of such counsel's knowledge, no rights to require registration of shares of Common Stock or other securities of the Company exist which should have been may be exercised in connection with the filing of the Registration Statement. The Shares, Representative's Warrants and Warrant Shares conform as to matters of law in all material respects to the description of such securities made in the Prospectus and such description accurately sets forth the material legal provisions thereof required to be set forth in a supplement or otherwise required an amendment the Prospectus.
(iii) The Shares have been duly authorized and, upon delivery to the Registration StatementUnderwriters against payment therefor, the General Disclosure Package or the Prospectus; will be validly issued, fully paid and nonassessable.
(iv) The certificates evidencing the Shares comply as to form with the applicable provisions of the laws of the State of Minnesota.
(v) The Representative's Warrants have been duly authorized, executed and delivered by the Company and are the valid and binding obligations of the Company, enforceable in accordance with their terms, except as enforceability may be limited by the application of bankruptcy, insolvency, moratorium, or other laws of general application affecting the rights of creditors generally and by judicial limitations on the right of specific performance and other equitable remedies. The Warrant Shares when issued in accordance with the terms of this Agreement and pursuant to the Representative's Warrants will be validly issued, fully paid and nonassessable. A sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Representative's Warrants.
(vi) The Registration Statement has become and is effective under the 1933 Act, the Prospectus has been filed as required by Rule 424(b), if necessary and, to the best knowledge of such counsel, no stop order orders suspending the effectiveness of the Registration Statement has have been issued and, to their knowledge, and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole▇▇▇▇ ▇▇▇.
(evii) The Representative shall have received: (i) simultaneously with To the execution best of this Agreement such counsel's knowledge, there are no material legal or governmental proceedings of a signed letter from character required by the Auditor addressed 1933 Act and the Rules and Regulations to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory be described or referred to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and or Prospectus that are not described or referred to therein. All pending legal or governmental proceedings, if any, to which the Disclosure Package, and (ii) on each Closing Date, Company is a signed letter from the Auditor addressed party or to the Representative and dated the date which any of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained its property is subject which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the Company.
(fviii) On each Closing DateNo authorization, approval or consent of any governmental authority or agency is necessary in connection with the Representative shall have received issuance and sale of the favorable opinionShares as contemplated under this Agreement, dated except such as may be required and obtained under the 1933 Act or under state or other securities laws in connection with the purchase and distribution of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for Shares by the Underwriters.
(gix) On each Closing DateThe Registration Statement, when it became effective, the Representative shall Prospectus and any amendments thereof or supplements thereto, (other than the financial statements and supporting financial and statistical data included or incorporated therein, as to which such counsel need express no opinion) on the date of filing or the date thereof, complied as to form in all material respects with the requirements of the 1933 Act and the Rules and Regulations, and the conditions for use of a registration statement on Form SB-2 for the distribution of shares have received been satisfied with respect to the favorable tax opinionCompany.
(x) This Agreement has been duly authorized, dated executed and delivered by, and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by the application of bankruptcy, insolvency, moratorium or similar laws affecting the rights of creditors generally and judicial limitations on the right of specific performance and except as the enforceability of indemnification or contribution provisions hereof may be limited by federal or state securities laws.
(xi) Such counsel does not know of any contracts, agreements, documents or instruments required to be filed as exhibits to the Registration Statement or described in the Registration Statement or the Prospectus which are not so filed or described as required, and does not know of any amendment to the Registration Statement required to be filed that has not been filed; and insofar as any statements in the Registration Statement or the Prospectus constitute summaries of any contract, agreement, document or instrument to which the Company is a party, such statements are accurate summaries and fairly present the information called for with respect to such matters.
(xii) To the best of such Closing Datecounsel's knowledge, there are no defects in title or leasehold interests, or any liens, encumbrances, equities, charges or claims, not disclosed in the Registration Statement or Prospectus which would materially affect the present occupancy or use of K▇any of the real or personal property owned or leased by the Company.
(xiii) To the best of such counsel's knowledge, except as described in the Prospectus, there are no United States patents of third parties which are infringed by the manufacture, use or sale of the products or processes currently made, used or sold by the Company.
(xiv) To the best of such counsel's knowledge there are no legal, governmental or administrative proceedings pending or threatened against the Company that relate to patents, trademarks or other intellectual property, except for pending or proposed United States and foreign patent applications.
(xv) To the best of such counsel's knowledge, except as described in the Prospectus, after due inquiry, the Company has not received any notice of conflict with the asserted rights of others in respect of any trademarks, service marks, trade names, trademark registrations, service ▇▇▇▇ Voekler C▇▇▇▇▇registrations, copyrights, licenses, inventions, trade secrets, patents, patent applications, know-how, or similar rights, nor of any threatened actions with respect thereto, which, if determined adversely to the Company, would individually or in the aggregate have a material adverse effect on the general affairs, financial position, net worth or results of operations of the Company.
(xvi) To the best of such counsel's knowledge, after due inquiry, the Company owns, possesses or is licensed under all such material trademarks, trademark applications, trademark registrations, service marks, service ▇▇▇▇ & F▇▇▇▇ PLCregistrations, copyrights, patents, patent applications and licenses as tax counsel are described in the Prospectus and which are necessary for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares 's present or planned future business as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given described in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Industrial Rubber Products Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus "free writing prospectus", as defined in Rule 405 of the Rules, shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company in their representative capacities to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by it at or prior to the Closing Date; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: , (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure PackageStatutory Prospectus, and (ii) on each such Closing Date, a signed letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from DLA ▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP, counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, containing the opinions substantially as set forth in EXHIBIT B attached hereto. To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representatives as to matters which are governed by laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States; provided that such counsel shall state that in their opinion the Underwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representatives.
(g) The Representatives shall have received on each Closing Date from ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Company with respect to FDA regulatory matters, an opinion, addressed to the Representatives and dated such Closing Date, containing the opinions substantially as set forth in EXHIBIT C attached hereto. To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representatives as to matters which are governed by laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States; provided that such counsel shall state that in their opinion the Underwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representatives.
(h) The Representatives shall have received on each Closing Date from the Law Office Of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the CompanyP.C., in form and substance reasonably satisfactory to special counsel for the Underwriters.
(g) On each Closing DateCompany with respect to trademark matters, the Representative shall have received the favorable tax an opinion, addressed to the Representatives and dated as of such Closing Date, containing the opinions substantially as set forth in EXHIBIT D attached hereto. To the extent deemed advisable by such counsel, such counsel may rely as to matters of K▇▇▇▇▇ Voekler C▇▇▇fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the Representatives as to matters which are governed by laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States; provided that such counsel shall state that in their opinion the Underwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representatives.
(i) The Representatives shall have received on each Closing Date from ▇▇▇▇▇▇ & F▇▇▇▇ PLCGodward LLP, as tax counsel for the CompanyRepresentatives, an opinion, addressed to the Representatives and dated such Closing Date, containing the opinions substantially as set forth in form EXHIBIT E attached hereto. To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and substance reasonably public officials and on the opinions of other counsel satisfactory to the Representatives as to matters which are governed by laws other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States; provided that such counsel for shall state that in their opinion the UnderwritersUnderwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representatives.
(hj) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives with respect to the Shares, the Registration Statement and their counselthe Prospectus, and such other related matters, as the Representatives may reasonably request, and the Company shall have furnished to Underwriters counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ik) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV SCHEDULE II hereto.
(jl) The Shares shall have been approved for listing quotation on the NASDAQ Capital National Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the any certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have such person has carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their such person’s opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i1) the General Disclosure Package, nor (ii2) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with on the execution of this Agreement Firm Shares Closing Date a signed letter from the Auditor addressed to the Representative and dated the date of this Agreementthe Firm Shares Closing Date, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Option Shares Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Option Shares Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement Statement, the General Disclosure Package and the Prospectus, provided, that such letters delivered on each Option Shares Closing Date (if any), shall use a “cut-off” date no more than two business days prior to such Option Shares Closing Date (if any).
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇▇ Voekler C▇▇& ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as counsel for the Company, an opinion and negative assurance letter, addressed to the CompanyRepresentative and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the UnderwritersReserved.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Oncternal Therapeutics, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or “free writing prospectus” (as defined in Rule 405 of the Rules), shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive officer or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in such capacity, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they such officers have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, Package and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not includeopinion, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus and which event is not described in the Registration Statement, the Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a wholeMaterial Adverse Effect.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed bringdown letter from the Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinion, dated as of such on each Closing Date, of K▇Date from ▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLLP, as counsel for the Company, an opinion and written negative assurances statement, addressed to the CompanyRepresentatives and dated such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentatives and their legal counsel.
(g) On each Closing Date, the Representative The Representatives shall have received the favorable tax opinion, dated as of such on each Closing Date, of K▇▇▇▇▇ Voekler C▇▇Date from ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCProcter LLP, as tax counsel for the CompanyRepresentatives, in form an opinion, addressed to the Representatives and substance dated such Closing Date, with respect to such matters as the Representatives may reasonably satisfactory require, and the Company shall have furnished or provided access to such counsel of such documents as they reasonably request for the Underwritersenabling them to pass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives and their counsel.
(i) The Representative Representatives shall have received copies enforceable written lock-up agreements in the form attached to this Agreement as Exhibit A attached hereto (“Lock-Up Agreement”) executed by all directors, officers and holders of more than 98% of the Lock-up Agreements executed by each entity or person listed on Schedule IV heretooutstanding equity securities of the Company.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(k) Subsequent to Since the execution and delivery date of this Agreement or, if earlier, the dates as most recent financial statements of which information is given the Company included in the Registration Statement, the General Disclosure Package or Package, the Statutory Prospectus and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, Company; (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could would reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, Company; (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to would have a Material Adverse Effect, ; (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that materially affects or could would reasonably be expected to materially affect the transactions contemplated by this Agreement shall have been instituted or threatened threatened; and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole Company that makes it impractical or inadvisable in the RepresentativeRepresentatives’ reasonable judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On As of the Firm Shares Closing Datedate hereof, FINRA shall have confirmed that it has not raised any unresolved objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(m) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such the Closing Date.
(d) The Representative shall have received on each the Closing Date a certificate, addressed to the Representative and dated such the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such the Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such the Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇Date from ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCPLLC, as counsel for the Company, a written opinion and negative assurance statement, addressed to the CompanyRepresentative and dated the Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the The Representative shall have received on the favorable tax opinionClosing Date from Proskauer Rose LLP, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the CompanyUnderwriters, an opinion and negative assurance statement in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares and Warrant Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq National Market, subject only to official notice of issuance.
(k) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Securities.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The Representatives shall be satisfied that (i) the representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date; (ii) since the Effective Date, no event as occurred that should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment and (iii) since the respective dates as of which information is given in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, there has not been any material adverse change or any development involving a prospective material adverse change in the business, properties, financial condition or results of operations of the Company, and since such dates, the Company has not entered into any material transaction not referred to in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; ;
(ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinon its part to be performed or satisfied hereunder on or prior to such Closing Date; (iii) they such officers have carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their such officers’ opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not 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, therein not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their such officers’ knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement received a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) certificate on each Closing Date, a Date signed letter from by the Auditor addressed Secretary of the Company to the Representative and dated the date of such Closing Date(s)effect that, in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, the Secretary certifies as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received (A) the accuracy and completeness of the Company’s certificate of incorporation and bylaws, (B) the resolutions of the Board of Directors and any committee thereof relating to the offering contemplated hereby, (C) the form of stock certificate representing the Shares and (D) copies of all communications with the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
Commission; (jii) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, Agreement; (iii) no loss or damage (whether or not insured) to the property incumbency and signature of persons signing this Agreement, the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, Registration Statement and other related documents; (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any approval of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect Shares for listing on the transactions contemplated by this Agreement shall have been instituted or threatened Nasdaq National Market; and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered such other matters as a whole that makes it impractical or inadvisable in the RepresentativeUnderwriters’ judgment to proceed with the purchase or offering of the Shares as contemplated herebycounsel may reasonably request.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received All filings required by the Representative Rule 424 and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) 430A of the Rules shall have been timely made within the time periods specified by such Rules. If the Company has elected to rely upon Rule 462(b), the registration statement filed with under Rule 462(b) shall have become effective by 10:00 p.m., New York, New York time, on the Commission in accordance with such ruledate of this Agreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated as of such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein, in each case, required to be performed or satisfied by it at or before such Closing Date; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from each of the Auditor Accountants addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from each of the Auditor Accountants addressed to the Representative and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On on each Closing DateDate from Dechert LLP, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably an opinion satisfactory in form and substance to the Representative and their counselcounsel for the Representative, addressed to the Representative and dated such Closing Date.
(g) The Representative shall have received on each Closing Date from ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Nevada counsel to the Company, an opinion satisfactory in form and substance to the Representative and counsel for the Representative, addressed to the Representative and dated such Closing Date.
(h) The Representative shall have received on each Closing Date from Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion satisfactory in form and substance to the Representative, addressed to the Representative and dated such Closing Date.
(i) [RESERVED]
(j) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV heretoII hereto (such parties listed on such Schedule II collectively, the “Locked-Up Parties”).
(jk) The Prior to the Firm Shares Closing Date, the Shares shall have been approved duly authorized for listing on the NASDAQ Capital Market, subject only to NGM upon official notice of issuance.
(kl) Subsequent to Since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration StatementStatement and the Statutory Prospectus, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package Statement or the Statutory Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entitiesbusiness, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole whole, whether or not arising from transactions in the ordinary course of business, that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with consummate the purchase or offering sale and delivery of the Shares as contemplated herebyby the Underwriters at the public offering price.
(lm) On As of the Firm Shares Closing Datedate hereof, FINRA shall have confirmed that it has not raised any no objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430A of the Rules, Rule 430A the information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company and the Selling Stockholders contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company and the Selling Stockholders shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their its Subsidiaries considered as a whole.
(e) The Representative shall have received on the Firm Shares Closing Date a certificate addressed to the Representative and dated such Closing Date, of each Selling Stockholder, to the effect that: (i) the representations, warranties and agreements of such Selling Stockholder in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) such the Selling Stockholder has performed all covenants and agreements and satisfied all conditions contained herein; and (iii) such Selling Stockholder has carefully examined the Registration Statement, the Prospectus and the General Disclosure Package, and, to the knowledge of such Selling Stockholder, (A) with respect to the information relating to such Selling Stockholder, as of the Effective Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, the General Disclosure Package did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred with respect to such Selling Stockholder which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement or the Prospectus.
(f) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(fg) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇▇ Voekler Cand ▇▇▇▇▇, LLP, counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, opining as to the matters set forth on Exhibit D hereto.
(h) The Representative shall have received on the Firm Shares Closing Date from ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, counsel for the Selling Stockholders, an opinion, addressed to the Representative and dated on the Firm Shares Closing Date, opining as to the matters set forth on Exhibit E hereto.
(i) The Representative shall have received on each Closing Date from Canadian counsel for the Company, an opinion, addressed to the Representative and dated such Closing Date, opining as to the organization, good standing and power and authority of, and certain other customary matters, relating to the Company’s Canadian Subsidiaries, which opinion shall be in a customary form reasonably satisfactory to the Representative.
(j) The Representative shall have received on each Closing Date from Ellenoff ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCSchole LLP, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing DateRepresentative, an opinion, addressed to the Representative shall have received the favorable tax opinion, and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, opining as tax counsel for to the Company, in form and substance reasonably satisfactory to counsel for the Underwritersmatters set forth on Exhibit F hereto.
(hk) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(il) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto. It is agreed that the Lock-up Agreements shall apply, if and as applicable, to any shares purchased in the Directed Share Program. In the event that the Representative, in its sole discretion, agrees to release or waive any restriction set forth in a Lock-Up Agreement for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three (3) Business Days before the effective date of such release or waiver (which release or waiver shall be substantially in the Form found at Exhibit A-1 hereto, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 hereto through a major news service at least two (2) Business Days before the effective date of the release or waiver.
(jm) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(kn) Subsequent to The Company shall have effected a one-for-five reverse stock split of its Common Stock as described in the execution Statutory Prospectus and delivery of this Agreement or, if earlier, the Prospectus.
(o) The Representative shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their its Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lp) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(mq) The Company and each Selling Stockholder shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Pioneer Power Solutions, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Units are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC▇▇▇▇, P.C., as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC▇▇▇▇, P.C., as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) On each Closing Date, there shall have been furnished to the Underwriters the negative assurance letter of ▇▇▇▇▇▇▇▇ & English, LLP, counsel to the Underwriters, dated such Closing Date, as applicable, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(i) All proceedings taken in connection with the sale of the Firm Shares Units and the Option Shares Units as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(jk) The Shares securities comprising the Units (and the securities into which the securities comprising the Units may be converted) shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(kl) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Units as contemplated hereby.
(lm) On the Firm Shares Units Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become effective shall have been received by the Representative be effective, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in their capacities as such, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been but was not set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received the favorable opinionon each Closing Date from each of Zysman, dated as of such Closing DateAharoni, of K▇▇▇▇▇ Voekler C▇and ▇▇▇▇▇▇▇▇ & FWorcester LLP and Zysman, Aharoni, ▇▇▇▇▇ PLC& Co, as counsel to counsels for the Company, opinions, addressed to the Representative and dated such Closing Date, in forms acceptable to the Representative. In addition, the Company’s U.S. counsel will provide a statement, substantially in a form acceptable to the Representative. To the extent deemed advisable by such counsel, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and substance reasonably public officials and on the opinions of other counsel satisfactory to the Representative as to matters which are governed by laws other than the laws of the State of New York, the State of Nevada and the Federal laws of the United States; provided that such counsel shall state that in their opinion that the Underwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representative and counsel for the Underwriters.
(g) On each Closing Date, the The Representative shall have received on each Closing Date from the favorable tax outside intellectual property counsel for the Company, an opinion, addressed to the Representative and dated as of such Closing Date, in a form acceptable to the Representative.
(h) The Representative shall have received on each Closing Date a certificate addressed to the Representative and dated such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCthe Company’s regulatory affairs officer, in the form attached to this Agreement as tax Exhibit B.
(i) The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the CompanyRepresentative, in form an opinion, addressed to the Representative and substance dated such Closing Date, with respect to such matters as the Representative may reasonably satisfactory require, and the Company shall have furnished or provided access to such counsel such documents as they request for the Underwritersenabling them to pass upon such matters.
(hj) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their its counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(jl) The Firm Shares, Warrant Shares and the Option Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuanceCM and Tel Aviv Stock Exchange and for trading on Frankfurt Stock Exchange.
(km) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding proceeding, foreign or domestic, affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(ln) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Securities.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
(p) The Representative shall have received a copy of the warrant agreement executed by the Company and American Stock Transfer & Trust Company, LLC, in a form acceptable to the Representative (the “Warrant Agreement”).
Appears in 1 contract
Sources: Underwriting Agreement (Pluristem Therapeutics Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Firm Units are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F, PLC and ▇▇▇▇▇▇▇ PLC& ▇▇▇▇▇▇▇, P.C., as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC▇▇▇▇, P.C., as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) On each Closing Date, there shall have been furnished to the Underwriters the negative assurance letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Underwriters, dated such Closing Date, as applicable, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(i) All proceedings taken in connection with the sale of the Firm Shares Units and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(jk) The Shares securities comprising the Firm Units (and the securities into which the securities comprising the Firm Units may be converted) shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(kl) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: :
(i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesEntities or Subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Firm Units as contemplated hereby.
(lm) On the Firm Shares Units Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares are is subject to each of the following terms and conditions:
(a) Notification Verbal notification from the Company that the Registration Statement has become became effective on the Effective Date shall have been received by the Representative Underwriter and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus,” as defined in Rule 405 of the Rules, shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence reasonably satisfactory to the Underwriters Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each the Closing Date as if made on such datethe Closing Date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such the Closing Date.
(d) The Representative Underwriter shall have received on each the Closing Date a certificate, addressed to the Representative Underwriter and dated such the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such the Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus Prospectuses and, in their opinion (A) as of the date of this Agreement, which is the most recent Effective Date of the Registration Statement, the Registration Statement did not and as of its date, the Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Applicable Time no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the ProspectusProspectus that has not been so disclosed; and (iv) to their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, and no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Underwriter shall have received: , (i) simultaneously with the execution of this Agreement a signed letter from the Auditor Ernst & Young LLP addressed to the Representative Underwriter and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters Underwriter with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure PackageStatutory Prospectus, and (ii) on each the Closing Date, a signed letter from the Auditor Ernst & Young LLP addressed to the Representative Underwriter and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative Underwriter containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Underwriter shall have received on the favorable opinion, dated as of such Closing Date, of KDate from ▇▇▇▇▇▇ Voekler CGodward Kronish LLP, counsel for the Company, an opinion and a negative assurance letter, each addressed to the Underwriter and dated the Closing Date, in substantially the form attached hereto as Exhibit B.
(g) The Underwriter shall have received on the Closing Date from Fish & ▇▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCP.C., as special intellectual property counsel to for the Company, an opinion, addressed to the Underwriter and dated the Closing Date, in substantially the form previously agreed upon and substance reasonably satisfactory provided to counsel for the UnderwritersUnderwriter.
(gh) On each Closing Date, the Representative The Underwriter shall have received the favorable tax opinion, dated as of such Closing Date, of Kfrom ▇▇▇▇▇▇ Voekler C▇▇& ▇▇▇▇▇▇▇ & FLLP, counsel for the Underwriter, an opinion addressed to the Underwriter and dated the Closing Date, covering such matters as are customarily covered in transactions of this type, provided that the Underwriter has requested such opinion, and the Company shall have furnished to ▇▇▇▇▇▇ PLC, & ▇▇▇▇▇▇▇ LLP such documents as tax counsel they may reasonably request for the Companypurpose of enabling them to pass upon such matters, with such documents being limited to those that are similar in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken documents delivered to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP in connection with prior securities offerings by the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their Company where ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP was underwriter’s counsel.
(i) The Representative Underwriter shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV I hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance, and the Company shall not have received any notice that it is not in compliance with the listing or maintenance requirements of Nasdaq.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative Underwriter such further customary certificates or documents as the Representative Underwriter shall have reasonably requested, with such requested certificates and documents being limited to those that are similar in substance to the certificates and documents delivered to the Underwriter in connection with prior securities offerings by the Company where the Underwriter participated as an underwriter.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates certificate delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer Chief Executive Officer and the chief financial officer or chief accounting officer Chief Financial Officer of the Company to the effect that: (i) the representations, representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; and (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the ProspectusProspectus under the Securities Act or the Rules; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the stockholders’ equity or results of operations, operations or business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities Company and their Subsidiaries its subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: (i) simultaneously with the execution of this Agreement Agreement, (a) a signed letter from the each Auditor addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure PackagePackage and (b) a certificate, dated the date of this Agreement and addressed to the Underwriters, of the Company’s Chief Financial Officer with respect to certain financial data contained in the Registration Statement, the Statutory Prospectus, the Prospectus and the Road Show, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representatives, and (ii) on each Closing Date, a signed letter from the each Auditor addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On on each Closing DateDate from DLA Piper LLP (US), the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to you, an opinion and negative assurance letter addressed to the Representatives and dated such Closing Date.
(g) The Representatives shall have received on each Closing Date from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the UnderwritersRepresentatives, an opinion and negative assurance letter, in form and substance reasonably satisfactory to you, addressed to the Representatives and dated such Closing Date.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counsel.
(i) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital MarketNYSE American, subject only to official notice of issuance.
(k) Subsequent to The Representatives shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package and the Prospectus, (i) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus: (i) , there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, operations or business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the RepresentativeRepresentatives’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Shares.
(m) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative shall have Representatives may reasonably requestedrequest.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇▇ & F▇▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇▇ & F▇▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Medalist Diversified REIT, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification Verbal notification from the Company that the Registration Statement has become became effective on the Effective Date shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule. The Company shall have paid the required filing fees to the Commission relating to the Shares within the time required by Rule 456(b)(1) of the Rules without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Rules.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus,” as defined in Rule 405 of the Rules, shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence reasonably satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus Prospectuses and, in their opinion (A) as of the date of this Agreement, which is the most recent Effective Date of the Registration Statement, the Registration Statement did not and as of its date, the Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, included any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Applicable Time no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the ProspectusProspectus that has not been so disclosed; and (iv) to their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, and no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received: , (i) simultaneously with the execution of this Agreement a signed letter from the Auditor Ernst & Young LLP addressed to the Representative Representatives and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure PackageStatutory Prospectus, and (ii) on each Closing Date, a signed letter from the Auditor Ernst & Young LLP addressed to the Representative Representatives and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Representatives containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Representatives shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇▇ Voekler CGodward Kronish LLP, counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date (with appropriate modifications for any opinion delivered on any subsequent Closing Date), in substantially the form attached hereto as Exhibit B.
(g) The Representatives shall have received on each Closing Date from Fish & ▇▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCP.C., as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax special intellectual property counsel for the Company, an opinion, addressed to the Representatives and dated such Closing Date, in substantially the form previously agreed upon and substance reasonably satisfactory provided to counsel for the UnderwritersRepresentatives.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representatives, and their counselcounsel and the Underwriters shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, a favorable opinion, addressed to the Representatives and dated such Closing Date, covering such matters as are customarily covered in transactions of this type, and the Company shall have furnished to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(i) The Representative Representatives shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative Representatives such further customary certificates or documents as the Representative Representatives shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Transaction Securities are subject to each of the following terms and conditions:
(a) Notification that the The Registration Statement has become effective shall have been received by and at the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and Closing Date no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon A prospectus containing Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B Information shall have been transmitted to filed with the Commission for filing pursuant to in the manner and within the period required by Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, (without reliance on Rule 424(b)(8)) or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B. Any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(cb) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Representative shall have reasonably determined, and advised the Company, that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto contains an untrue statement of fact which, in the Representative’s reasonable opinion, is material, or omits to state a fact which, in the Representative’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, Prospectus and any individual Issuer Issuer-Represented Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Timeeach Closing Date, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Issuer-Represented Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, Statement or the General Disclosure Package or the ProspectusPackage; (iv) the Common Stock and the Common Stock underlying the Warrants have been approved for listing on the NYSE MKT; (v) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (vvi) there has not occurred any material adverse change Material Adverse Effect or any event that is likely to result in a Material Adverse Effect, whether or not arising from transactions in the assetsordinary course of business.
(e) The Representative shall have received on each Closing Date a certificate, propertiesaddressed to the Representative and dated such Closing Date, conditionof the chief financial officer of the Company to the effect that (i) attached to such certificate is a true, financial complete copy of the certificate of incorporation of the Company, as amended, that no proceedings are contemplated by the Company, its directors, officers or, to such officer’s knowledge, the Company’s stockholders for the merger, consolidation, liquidation or otherwisedissolution of the Company or the sale of all or substantially all of its assets and no action has been taken by the Company’s board of directors or, to such officer’s knowledge, stockholders to further amend the articles; (ii) such officer certifies the signatures of the officers of the Company; (iii) attached to such certificate is a true, complete copy of the bylaws of the Company in full force and effect and no action has been taken by the Company’s board of directors or, to such officer’s knowledge, stockholders to amend the bylaws; (iv) attached to such certificate are true, complete and correct copies of resolutions duly and validly adopted by the board of directors of the Company in accordance with Delaware law relating to the Offering, that such resolutions have not been amended, suspended, modified, rescinded or revoked, and remain in full force and effect, and such resolutions are the only resolutions adopted by the Company’s board of directors relating to the Offering; (v) except as previously delivered in writing to Representative’s legal counsel, there are no meeting minutes, written consents or other documents concerning proceedings of the Company’s board of directors, the committees of the Company’s board of directors, or the Company’s shareholders that (A) relate to matters material to the Offering or (B) concern matters which could have a Material Adverse Effect on the Company and its business, except as disclosed in the results Registration Statement, and all such meeting minutes, written consents or other documents concerning proceedings are true, correct and complete copies thereof for the periods covered thereby and, except as previously disclosed to Representative’s legal counsel in writing, there have been no material changes, additions or alterations to said meeting minutes, written consents or other documents concerning proceedings; (vi) the Company identifies the duly appointed transfer agent and registrar with respect to the Common Stock; (vii) each person who, as a director or officer of operationsthe Company or attorney-in-fact of such director or officer that signed (A) the Registration Statement or any power of attorney pursuant to which such Registration Statement or amendments thereto were signed, business affairs (B) the certificates representing the Common Stock, (C) any other document delivered previously or business prospects on the date of such certificate in connection with the Registration Statement were, at the time of the filing, or any such amendment with the Commission, and is now duly elected or appointed, qualified and acting as such director or officer or duly appointed and acting as such attorney-in-fact, and the signatures of such persons appearing on such documents are their genuine signatures or, in the case of the certificates representing Common Stock, true copies thereof; (viii) such officer has carefully examined the Registration Statement, the Prospectus, the General Disclosure Package and (A) as described of the Effective Date, the Registration Statement and Prospectus did not include, and as of the applicable time the General Disclosure Package did not include any untrue statement of a material fact, nor did they omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (ix) there has not occurred any Material Adverse Effect since the date of the Registration Statement and the Prospectus) of the Transaction Entities Prospectus and their Subsidiaries considered as no event that is likely to result in a wholeMaterial Adverse Effect has occurred since such dates.
(ef) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the each Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the each Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(fg) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ Morse, Zelnick, Rose & F▇▇▇▇ PLCLander LLP, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(gh) On each Closing Date, the Representative shall have received the favorable tax opinionintellectual property legal opinions, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax from intellectual property legal counsel for to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(hi) On each Closing Date, there shall have been furnished to the Underwriters the negative assurance letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Underwriters, dated such Closing Date, as applicable, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(j) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Transaction Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(ik) The Representative shall have received copies of the Lock-up Agreements in form and substance reasonably satisfactory to counsel for the Underwriters executed by each entity or person listed on Schedule IV hereto.
(jl) The Shares Company shall have been approved for received approval of the listing of the Common Stock and the Common Stock underlying the Warrants on the NASDAQ Capital MarketNYSE MKT. The Company shall have taken no action designed to, subject only or likely to official notice have the effect of issuanceterminating the registration of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the NYSE MKT, nor has the Company received any information suggesting that the Commission or NYSE MKT is contemplating terminating such registration or listing. The Common Stock and the shares of Common Stock underlying the Warrants shall be DTC eligible.
(km) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, Statement or the General Disclosure Package or the ProspectusPackage: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany or its subsidiaries, (ii) except as set forth or contemplated by the Registration Statement, Statement or the General Disclosure Package or the ProspectusPackage, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Transaction Securities as contemplated hereby.
(ln) On the Firm Shares Securities Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as required by this Agreement, the obligations of the Underwriters to consummate the Closing hereunder may be cancelled by the Representative after notice of such cancellation shall have be given to the Company in writing and the Company shall have been given a reasonable period of time to satisfy such condition (if such condition is capable of being satisfied).
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement Agreement, and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or or, to the knowledge of the Company, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such each Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such as of the respective Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company Company, in their capacity as such officers, to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; Act and (v) there has not occurred been any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as event which would have a wholeMaterial Adverse Effect.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus; provided, that such letter delivered simultaneously with the execution of this Agreement and on each subsequent Closing Date (if any) shall use a “cut-off” date no more than two business days prior to the date of this Agreement and each subsequent Closing Date (if any).
(f) On each Closing Date, the The Representative shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from ▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCUS LLP, as counsel for the Company, an opinion and a negative assurance letter, addressed to the CompanyRepresentative and dated as of such Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On The Representative shall have received a certificate of the chief executive officer of the Company, in his capacity as such officer, addressed to the Representative and dated as of each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for relating to the Company’s intellectual property, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on each Closing Date from ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇, P.C., counsel for the Representative, an opinion, addressed to the Representative and dated as of such Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel. The Shares shall have been delivered via the DTC system to the accounts of the Underwriters. The Representative shall have received electronic copies of the Pre-Funded Warrants executed by the Company.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent The Company shall have filed a Supplemental Listing Application with NYSE American to satisfy the execution and delivery Company’s notification obligation under Section 303(b) of this Agreement or, if earlier, the NYSE American Company Guide.
(l) The Representative shall be reasonably satisfied that since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to would result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to would have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(lm) On or prior to the Firm Shares Securities Closing Date, the Representative shall have received a letter from the Corporate Financing Department of FINRA issued in connection with the Base Prospectus and FINRA shall not have confirmed that it has not raised any objection with respect to the fairness and or reasonableness of the underwriting terms and agreements in connection with terms, or other arrangements of the Offeringtransactions, contemplated hereby.
(mn) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Sources: Underwriting Agreement (Perspective Therapeutics, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus shall have been or shall be in effect and effect, no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The Representative shall be reasonably satisfied that: (i) the representations and warranties of the Company and the Selling Stockholders contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be be, (x) if qualified as to materiality, true and correct and (y) in all other cases, true and correct in all material respects, when made and on and as of each Closing Date as if made on such date; (ii) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Prospectus that has not been set forth in an effective supplement or amendment; and (iii) since the respective dates as of which information is given in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, there has not been any material adverse change or any development involving a prospective material adverse change in the business, properties, financial condition or results of operations of the Company and its subsidiaries, and since such dates, neither the Company nor any of its subsidiaries has entered into any material transaction not referred to in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date and the Selling Stockholders shall have, in all material respects, performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated as of such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct in all material respects when made and are true and correct in all material respects as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have each carefully examined the Registration Statement, Statement and the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statement or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement received on each Closing Date a signed letter from the Auditor certificate addressed to the Representative and dated as of such Closing Date, of each Selling Stockholder, to the date effect that: (i) the representations, warranties and agreements of each Selling Stockholder in this Agreement were true and correct in all material respects when made and are true and correct in all material respects as of such Closing Date; (ii) each Selling Stockholder has performed all covenants and agreements and satisfied all conditions contained herein; and (iii) each Selling Stockholder has carefully examined the Registration Statement and the Prospectus and, in the opinion of such Selling Stockholder, (A) with respect to the information relating to such Selling Stockholder, as of the Effective Date, the Registration Statement and Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred with respect to such Selling Stockholder which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement or the Prospectus.
(f) The Representative shall have received a certificate on each Closing Date signed by the Secretary of the Company to the effect that, as of the Closing Date, the Secretary certifies as to the accuracy of the Company's charter and bylaws, the resolutions of the Board of Directors relating to the offering contemplated hereby, the form of stock certificate representing the Shares and copies of all communications with the Commission; as to the execution and delivery of this Agreement; as to the incumbency and signature of persons signing this Agreement, the Registration Statement and other related documents; as to the approval of the Shares for listing on the Nasdaq National Market; as to the Company's compliance with all agreements and performance or satisfaction of all conditions required hereunder; as to the consideration received for all outstanding shares of the Company's Common Stock; and as to such other matters as Underwriters' counsel may reasonably request.
(g) The Representative shall have been furnished evidence in the usual written or electronic form and substance reasonably from the appropriate authorities of the several jurisdictions, or other evidence satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to good standing and qualifications of the financial statements Company.
(h) The Representative shall have received, at the time this Agreement is executed and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, Date a signed letter from the Auditor Ernst & Young addressed to the Representative and dated dated, respectively, the date of this Agreement and each such Closing Date(s)Date, in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(fi) On each Closing Date, the The Representative shall have received a copy of a letter from Ernst & Young addressed to the favorable Company, stating that their review of the Company's internal accounting controls, to the extent they deemed necessary in establishing the scope of their examination of the Company's financial statements filed with the Registration Statement and the Prospectus, did not disclose any weakness in internal controls that they considered to be material weaknesses.
(j) The Representative shall have received on each Closing Date from Bingham McCutchen LLP, counsel for the Company, an opinion, addressed ▇▇ ▇▇▇ ▇▇▇▇esentative and dated as of such Closing Date, of Ksubstantially in the form attached hereto as Exhibit D.
(k) The Representative shall have received on each Closing Date from Preti Flaherty Beliveau Pachios & Haley LLP, counsel for the Company a▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Voekler C▇▇ockholders, ▇▇ ▇pinion, addressed to the Representative and dated as of such Closing Date, substantially in the form attached hereto as Exhibit E.
(l) The legality and sufficiency of the sale of the Shares hereunder and the validity and form of the certificates representing the Shares, all corporate proceedings and other legal matters incident to the foregoing, and the form of the Registration and of the Prospectus (except as to the financial statements and financial information contained therein) shall have been approved at or prior to the Closing Date by Morrison & Foerster LLP, counsel for the underwriters. The Repre▇▇▇▇▇▇▇▇▇ & Fe s▇▇▇▇ PLC▇▇▇e received on each Closing Date from Morrison & Foerster an opinion, as counsel addressed to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇ ▇▇▇▇d a▇ Voekler C▇▇ ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCh Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement and the Prospectus and such other related matters as tax the Underwriters reasonably may request and such counsel for the Company, in form shall have received such documents and substance reasonably satisfactory other information as they request to counsel for the Underwritersenable them to pass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(im) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV III hereto.
(jn) The Shares shall have been approved for listing quotation on the NASDAQ Capital Nasdaq National Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(mo) The Company and each Selling Stockholder shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleRule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and in all material respects on and as of each Closing Date as if made on such date; provided, however, that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality or Material Adverse Effect in the text thereof. The Company shall have performed all covenants and agreements in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative shall have received on each Closing Date a certificate, addressed to the Representative and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in all material respects as of such Closing Date; provided, however, that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality or Material Adverse Effect in the text thereof; (ii) the Company has performed all of its covenants and agreements in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by the Company; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and as of the times described above such documents did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date. To the extent those sections of the comfort letter relating to the quarter ended June 30, 2009 do not cover the entire quarter, the Representative shall have received a certificate, addressed to the favorable opinion, Representative and dated as of the date of each delivery of a comfort letter, of the chief financial officer of the Company, that covers those portions of the quarter ended June 30, 2009 that are not covered by the applicable comfort letter.
(f) The Representative shall have received on each Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Company, (i) an opinion, addressed to the Representative and dated such Closing Date, of Kstating in effect the matters set forth on Exhibit B-1 hereto, and (ii) a negative assurance letter, addressed to the Representative and dated such Closing Date, stating in effect the matters set forth on Exhibit B-2 hereto.
(g) The Representative shall have received on each Closing Date from ▇▇▇▇▇ Voekler C▇ ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to Esq., Senior Vice President and Chief Intellectual Property Officer of the Company, an opinion, addressed to the Representative and dated such Closing Date, stating in form and substance reasonably satisfactory to counsel for effect the Underwritersmatters set forth on Exhibit C hereto.
(gh) On each Closing Date, the The Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇from ▇▇▇▇▇▇▇ & F▇▇▇▇▇▇ PLC▇▇▇▇▇▇ & Dodge LLP, a favorable opinion, addressed to the Representative and dated such Closing Date, covering such matters as tax counsel are customarily covered in transactions of this type, and the Company shall have furnished to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Dodge LLP such documents as they may reasonably request for the Company, in form and substance reasonably satisfactory purpose of enabling them to counsel for the Underwriterspass upon such matters.
(hi) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their its counsel.
(ij) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Shares shall have been approved for listing on the NASDAQ Capital MarketThe Nasdaq GM, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company (other than as a result of the exercise of outstanding stock options or other equity-based rights described in the Registration Statement, the Statutory Prospectus, the General Disclosure Package and the Prospectus) or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares are Securities is subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Underwriter and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of either of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or or, to the knowledge of the Company, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Underwriter shall have received on each Closing Date a certificate, addressed to the Representative Underwriter and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained hereinherein required to be performed or satisfied by the Company; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Underwriter shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Underwriter containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Underwriter shall have received on each Closing Date from Ropes & ▇▇▇▇ LLP, counsel for the favorable opinionCompany, an opinion and written statement, addressed to the Underwriter and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇in form and substance as is set forth on Exhibit B attached hereto.
(g) The Underwriter shall have received on each Closing Date from ▇▇▇▇▇▇▇ & F▇▇▇▇ PLCProcter LLP, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing DateUnderwriter, an opinion and written statement, addressed to the Representative shall have received the favorable tax opinion, and dated as of such Closing Date, with respect to the validity of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCthe Securities, the Registration Statement, the General Disclosure Package, the Prospectus and other related matters as tax the Underwriter reasonably may request, and such counsel for the Company, in form shall have received such papers and substance reasonably satisfactory information as they request to counsel for the Underwritersenable them to pass upon such matters.
(h) All proceedings taken in connection with the sale of the Firm Shares Securities and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Underwriter and their counselcounsel for the Underwriter.
(i) The Representative Underwriter shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV III hereto.
(j) The Firm Shares, the Option Shares and the Warrant Shares shall have been approved for listing on the NASDAQ Capital Nasdaq Global Market, subject only to official notice of issuance.
(k) Subsequent to The Underwriter shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the General Disclosure Package and the Prospectus, (i) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus: (i) , there shall not have been any material change in the capital stock of the Company (other than as a result or the exercise of outstanding stock options) or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, there shall not have been any material adverse change in the assets, properties, condition (financial or otherwise)condition, or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their its Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ Underwriter’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(l) On the Firm Shares Securities Closing Date, FINRA the Company shall have confirmed that it has not raised any objection with respect furnished to the fairness and reasonableness Underwriter a Secretary’s Certificate of the underwriting terms and agreements in connection with the OfferingCompany.
(m) The Company shall have furnished or caused to be furnished to the Representative Underwriter such further customary certificates or documents as the Representative Underwriter shall have reasonably requested.
(n) On or prior to the Firm Securities Closing Date, the Company shall have furnished evidence reasonably satisfactory to the Underwriter that (i) a notice of termination has been sent to Azimuth or (ii) the Company has entered into a mutual consent with Azimuth, in each case, to terminate the Azimuth Agreements.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares Securities are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective and shall have been received by the Representative Representative, and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a) of this Agreement Agreement, and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such rule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A430B, Rule 430A 430B information previously omitted from the effective Registration Statement pursuant to Rule 430A 430B shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430B.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d) shall be true and correct when made and on and as of each the Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such the Closing Date.
(d) The Representative shall have received on each the Closing Date a certificate, addressed to the Representative and dated such the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such the Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date Date, the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Date, no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects of the Company and its subsidiaries considered as a whole; (vi) except as set forth in Exhibit A1 of the certificate, to its knowledge, the Company (A) has not received any written notice of infringement, offer to license, notice of misappropriation, or notice of conflict with any patent rights of any third person, (B) has not infringed, misappropriated or violated, and upon commercialization and sale of the products or services described in the Registration Statement, the General Disclosure Package Statement and the Prospectus) Prospectus as being under development, would not be infringing, misappropriating or otherwise violating any rights arising under any patent issued as of the Transaction Entities date hereof to any third person of which it is aware, and their Subsidiaries considered (C) believes that no third party is infringing, has misappropriated or is otherwise violating any rights of the Company arising under the patent applications and patents handled by ▇▇▇▇▇▇▇▇ Law Group, LLC; and (vii) except as a wholeset forth in Exhibit A1 of the certificate, to its knowledge, there is no pending or threatened, action, suit, proceeding or clam by any governmental authority or other third party challenging the validity, scope, use, ownership, enforceability, or other rights of the Company or its licensors in or to, any patent applications and patents handled by ▇▇▇▇▇▇▇▇ Law Group, LLC or alleging that the Company infringes any third-party patent.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement Agreement, a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each the Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such the Closing Date(s), in form and substance reasonably satisfactory to the Representative Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the The Representative shall have received on the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler CDate from ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC▇▇▇▇, as P.A., counsel for the Company, an opinion and a negative assurance letter, addressed to the CompanyRepresentative and dated as of the Closing Date, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCLaw Group, LLC shall have furnished to the Underwriters such counsel’s written opinion, as tax intellectual property counsel for to the Company, addressed to the Representative and dated as of the Closing Date, as applicable, in form and substance reasonably satisfactory to counsel for the UnderwritersRepresentative.
(h) The Representative shall have received on the Closing Date from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Representative, an opinion, addressed to the Representative and dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(i) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative Representative, and their counsel.
(ij) The Representative shall have received copies of the Lock-up Up Agreements executed by each entity or person listed on Schedule IV II hereto.
(jk) The Company shall have filed a Notification: Listing of Additional Shares with the NYSE American and received no objection thereto. The Shares and the Warrant Shares shall have been be qualified and approved for listing on the NASDAQ Capital MarketNYSE American, subject only to official notice of issuance.
(kl) Subsequent to The Representative shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material to the Transaction Entities Company or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ ’s judgment to proceed with the purchase or offering of the Shares Securities as contemplated hereby.
(lm) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offeringoffering of the Securities.
(mn) The Representative shall have received electronic copies of the Warrants executed by the Company.
(o) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters Underwriter to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Underwriter and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a5(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleRule.
(b) No order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus “free writing prospectus” (as defined in Rule 405 of the Rules), shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or or, to the knowledge of the Company, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeUnderwriter. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters Underwriter of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.
(c) The representations and warranties of the Company contained in this Agreement and in the certificates delivered pursuant to Section 3(d4(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Underwriter shall have received on each Closing Date a certificate, addressed to the Representative Underwriter and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) to their knowledge, the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) to their knowledge, the Company has performed in all material respects all covenants and agreements and satisfied in all material respects all conditions contained hereinherein required to be performed or satisfied by the Company; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date Applicable Time no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package Statutory Prospectus or the ProspectusProspectus that was not so set forth; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Underwriter shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of this Agreement, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the General Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative Underwriter and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative Underwriter containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative The Underwriter shall have received the favorable opinion, dated as of such on each Closing Date, of KDate from O’Melveny & ▇▇▇▇▇ Voekler CLLP, counsel for the Company, an opinion, addressed to the Underwriter and dated such Closing Date, and stating in effect the matters set forth in Exhibit B hereto.
(g) The Underwriter shall have received on each Closing Date from ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to General Counsel of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax an opinion, addressed to the Underwriter, and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇and stating in effect the matters set forth in Exhibit C hereto.
(h) The Underwriter shall have received on each Closing Date from Pillsbury ▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC▇▇▇▇▇▇▇ LLP (“Pillsbury”), as tax counsel for the CompanyUnderwriter, a favorable opinion, addressed to the Underwriter and dated such Closing Date, covering such matters as are customarily covered in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale transactions of the Firm Shares this type, and the Option Shares Company shall have furnished to Pillsbury such documents as herein contemplated shall be they may reasonably satisfactory in form and substance request for purposes of enabling them to the Representative and their counselpass upon such matters.
(i) The Representative Underwriter shall have received copies of the written lock-up agreements in the form attached hereto as Exhibit A (“Lock-up Agreements Agreements”) executed by each entity or person listed on Schedule IV I hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Global Select Market, subject only to official notice of issuance.
(k) Subsequent to The Underwriter shall be reasonably satisfied that since the execution and delivery of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus, the General Disclosure Package or and the Prospectus: , (i) there shall not have been any material change in the capital stock of the Company (other than as a result or the exercise of outstanding stock options) or other than as disclosed in the General Disclosure Package, any material change in the indebtedness (other than in the ordinary course of business) of the Transaction EntitiesCompany, (ii) except as set forth or contemplated by the Registration Statement, the Statutory Prospectus, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities Company that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction EntitiesCompany, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities Company shall have been sustained that had or could would reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities Company or any of their its properties that is material if determined adversely to the Transaction Entities Company reasonably would be expected to result in a Material Adverse Effect or that affects or could would reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material adverse change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities Company or their Subsidiaries its subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ Underwriter’s judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative Underwriter such further customary certificates or documents as the Representative Underwriter shall have reasonably requested.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a7(a) of this Agreement and any material required to be filed by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleAgreement.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the RepresentativeRepresentatives. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.430A. If the Company has elected to rely upon Rule 434, a term sheet shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company and the Selling Stockholders contained in this Agreement and in the certificates delivered pursuant to Section 3(d6(d) shall be true and correct when made and on and as of each Closing Date as if made on such date. The Company and the Selling Stockholders shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: that (i) the representationssigners of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement and that the representations and warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct on and as of such Closing Date; (ii) Date with the same effect as if made on such Closing Date and the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact this Agreement required to be stated therein performed or necessary satisfied by it at or prior to make the statements therein, in light of the circumstances under which they were made, not misleadingsuch Closing Date, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (ivii) no stop order suspending the effectiveness of the Registration Statement has been issued and, and to the best of their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representatives and dated such Closing Date, of the Selling Stockholders, to the effect that the Selling Stockholders have carefully examined the Registration Statement, the Prospectus and this Agreement and that the representations and warranties of the Selling Stockholders in this Agreement are true and correct on and as of such Closing Date with the same effect as if made on such Closing Date and the Selling Stockholders have performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(f) The Representatives shall have received: (i) simultaneously with , at the execution of time this Agreement is executed and on each Closing Date a signed letter from the Auditor KPMG LLP addressed to the Representative Representatives and dated dated, respectively, the date of this AgreementAgreement and each such Closing Date, in form and substance reasonably satisfactory to the Representative, Representatives containing statements and information of the type ordinarily included in accountants’ “' "comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” " to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(fg) On each Closing Date, the Representative The Representatives shall have received on each Closing Date from Connor & Winters, P.C., counsel for the favorable Company, an opinion, address▇▇ ▇▇ ▇he Representatives and dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇in form satisfactory to Vinson & Elkins L.L.P., counsel for the Underwriters, and s▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLCt that:
(A) The Common Stock and the Shares conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus.
(B) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) or any other agreement or instrument entered into or to be entered into by the Company in connection with the transactions contemplated by the Registration Statement and the Prospectus will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company or any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed trust, note or other agreement or instrument of which such counsel is aware and to which the Company or any of its Subsidiaries is a party or by which either the Company or any of its Subsidiaries or any of their assets or properties or businesses is bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation, domestic or foreign, of which such counsel is aware or violate any provision of the charter or by-laws of the Company or any of its Subsidiaries.
(C) The Company is duly qualified to transact business and in good standing as tax counsel a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its businesses makes such qualification necessary, except for such jurisdictions where the failure to so qualify, individually or in the aggregate, would not have a Material Adverse Effect.
(D) To such counsel's knowledge, neither the Company nor any of its Subsidiaries is in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), any license, indenture, mortgage, deed of trust, bank loan or any other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or their respective properties may be bound or affected or under any law, regulation or rule or any decree, judgment or order applicable to the Company or any of its Subsidiaries.
(E) No consent, approval, authorization, license, registration, qualification or order of any court or governmental agency or regulatory body is required for the Companydue authorization, execution, delivery or performance of this Agreement by the Company or the consummation of the transactions contemplated hereby or thereby, except such as have been obtained under the Securities Act and such as may be required under state securities or Blue Sky laws in form connection with the purchase and substance reasonably satisfactory to counsel for distribution of the Shares by the several Underwriters.
(hF) All proceedings taken To such counsel's knowledge, there is no litigation or governmental or other proceeding or investigation, before any court or before or by any public body or board pending or threatened against, or involving the assets, properties or businesses of, the Company which is required to be disclosed in connection with the sale of the Firm Shares Registration Statement and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counselProspectus or which would have a Material Adverse Effect.
(iG) The Representative shall have received Accurate copies of all contracts and other documents required to be filed as exhibits to, or described in, the Lock-up Agreements executed by each entity Registration Statement have been so filed with the Commission or person listed on Schedule IV heretoare fairly described in the Registration Statement, as the case may be.
(jH) The Registration Statement, all Preliminary Prospectuses and the Prospectus and each amendment or supplement thereto (except for the financial statements and schedules and other financial and statistical data included therein, as to which such counsel expresses no opinion) comply as to form in all material respects with the requirements of the Securities Act and the Rules and the documents incorporated by reference in the Registration Statement, all Preliminary Prospectuses and the Prospectuses and any further amendment or supplement to any such incorporated document made by the Company (except for the financial statements and schedules and other financial and statistical data included therein, as to which such counsel expresses no opinion) when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder.
(I) The Registration Statement is effective under the Securities Act, and to such counsel's knowledge no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened, pending or contemplated. Any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by such Rule 424(b).
(J) The Shares shall have been approved for listing on the NASDAQ Capital MarketNYSE, subject only to official notice of issuanceissuance at or prior to the Closing Date.
(kK) Subsequent The Company is not an "investment company" or an entity controlled by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended. To the extent deemed advisable by such counsel, they may rely as to matters of fact on certificates of responsible officers of the Company and public officials and on the opinions of other counsel satisfactory to the execution Representatives as to matters which are governed by laws other than the laws of the State of New York and delivery the Federal laws of this Agreement orthe United States; provided that such counsel shall state that in their opinion the Underwriters and they are justified in relying on such other opinions. Copies of such certificates and other opinions shall be furnished to the Representatives and counsel for the Underwriters. In addition, if earliersuch counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the dates as Representatives and representatives of the independent certified public accountants of the Company, at which information conferences the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is given not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration StatementStatement and the Prospectus (except as specified in the foregoing opinion), on the General Disclosure Package or basis of the Prospectus: foregoing, no facts have come to the attention of such counsel which lead such counsel to believe that (i) there shall the Registration Statement at the time it became effective (except with respect to the financial statements and notes and schedules thereto and other financial data, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not have been misleading, or that the Prospectus as amended or supplemented (except with respect to the financial statements, notes and schedules thereto and other financial data, as to which such counsel need make no statement) on the date thereof contained any untrue statement of a material change fact or omitted to state a material fact necessary in order to make the statements therein, in the capital stock light of the Company circumstances under which they were made, not misleading or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth any document incorporated by reference in the Prospectus or contemplated any further amendment or supplement to any such incorporated document made by the Company, when they became effective or were filed with the Commission, as the case may be, contained, in the case of a registration statement which became effective under the Securities Act, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or, in the case of other documents which were filed under the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) The Representatives shall have received on each Closing Date from Arias, Fabrega & Fabrega, Panamanian counsel for the Company, a▇ ▇▇▇ni▇▇, ▇▇▇res▇▇▇ ▇▇ the Representatives and dated such Closing Date, in form satisfactory to Vinson & Elkins L.L.P., ▇▇▇▇▇▇l for the Underwriters, and stating in effect that:
(A) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Republic of Panama, with all requisite corporate power and authority to own, lease and license its assets and properties and conduct its business as now being conducted and as described in the Registration StatementStatement and the Prospectus and to enter into, deliver and perform its obligations under this Agreement and to issue and sell the General Disclosure Package Shares as herein contemplated; and to such counsel's knowledge, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(B) Each of the Subsidiaries organized in Panama (the "Panama Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Republic of Panama, with all requisite corporate power and authority to own, lease and license its assets and properties and conduct its business as now being conducted; and to such counsel's knowledge, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of any such Subsidiary. Each Panama Subsidiary is duly qualified to transact business and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the Prospectusnature of its businesses makes such qualification necessary, no material oral except for such jurisdictions where the failure to so qualify, individually or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entitiesaggregate, (iii) no loss or damage (whether or would not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(lC) On All necessary corporate action has been duly and validly taken by the Firm Shares Closing DateCompany to authorize the execution, FINRA shall have confirmed that it has not raised any objection with respect to delivery and performance of this Agreement and the fairness issuance and reasonableness sale of the underwriting Shares. This Agreement has been duly and validly authorized, executed and delivered by the Company and this Agreement constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with their respective terms except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and agreements in connection with other similar laws affecting the Offeringenforcement of creditors' rights generally and by general equitable principles.
(mD) The Company shall have furnished or caused to be furnished to has authorized, issued and outstanding capital stock as set forth in the Representative such further customary certificates or documents Registration Statement and the Prospectus under the caption "Capitalization" as of the Representative shall have reasonably requested.dates stated therein; the certifi
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Conditions of the Underwriters’ Obligations. The obligations of the Underwriters under this Agreement are several and not joint. The respective obligations of the Underwriters to purchase the Shares are subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become effective shall have been received by the Representative and the The Prospectus shall have been timely filed with the Commission in accordance with Section 4(a7(A)(a) of this Agreement. The Registration Statement shall have become effective no later than 5:00 p.m., New York City time, on the date of this Agreement or such later time and any material required date as shall be consented to be filed in writing by the Company pursuant to Rule 433(d) of the Rules shall have been timely filed with the Commission in accordance with such ruleRepresentatives.
(b) No order preventing or suspending the use of any Preliminary Prospectus, preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Commission and the Representative. If the Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the effective Registration Statement pursuant to Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company shall have provided evidence satisfactory to the Underwriters of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A.Representatives.
(c) The representations and warranties of the Company and the Selling Shareholders contained in this Agreement and in the certificates delivered pursuant to Section 3(d6(d) and 6(e), respectively, shall be true and correct when made and on and as of each Closing Date as if made on such date. The date and the Company and the Selling Shareholders shall have performed in all material respects all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it or them at or before such Closing Date.
(d) The Representative Representatives shall have received on each Closing Date a certificate, addressed to the Representative Representatives and dated such Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that: (i) the representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct as of such Closing Date; (ii) the Company has performed in all material respects all covenants and agreements and satisfied all conditions contained herein; (iii) they have carefully examined the Registration Statement, the Prospectus, the General Disclosure Package, and any individual Issuer Free Writing Prospectus and, in their opinion (A) as of the Effective Date the Registration Statement and Prospectus did not include, and as of the Applicable Time, neither (i) the General Disclosure Package, nor (ii) any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included, any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the General Disclosure Package or the Prospectus; (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for that purpose have been instituted or are pending under the Securities Act; and (v) there has not occurred any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects (as described in the Registration Statement, the General Disclosure Package and the Prospectus) of the Transaction Entities and their Subsidiaries considered as a whole.
(e) The Representative shall have received: (i) simultaneously with the execution of this Agreement a signed letter from the Auditor addressed to the Representative and dated the date of this Agreement, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Disclosure Package, and (ii) on each Closing Date, a signed letter from the Auditor addressed to the Representative and dated the date of such Closing Date(s), in form and substance reasonably satisfactory to the Representative containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(f) On each Closing Date, the Representative shall have received the favorable opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as counsel to the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(g) On each Closing Date, the Representative shall have received the favorable tax opinion, dated as of such Closing Date, of K▇▇▇▇▇ Voekler C▇▇▇▇▇▇▇▇▇ & F▇▇▇▇ PLC, as tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm Shares and the Option Shares as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and their counsel.
(i) The Representative shall have received copies of the Lock-up Agreements executed by each entity or person listed on Schedule IV hereto.
(j) The Shares shall have been approved for listing on the NASDAQ Capital Market, subject only to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus: (i) there shall not have been any material change in the capital stock of the Company or any material change in the indebtedness (other than in the ordinary course of business) of the Transaction Entities, (ii) except as set forth or contemplated by the Registration Statement, the General Disclosure Package or the Prospectus, no material oral or written agreement or other transaction shall have been entered into by the Transaction Entities that is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings of the Transaction Entities, (iii) no loss or damage (whether or not insured) to the property of the Transaction Entities shall have been sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) no legal or governmental action, suit or proceeding affecting the Transaction Entities or any of their properties that is material to the Transaction Entities or that affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the assets, properties, condition (financial or otherwise), or in the results of operations, business affairs or business prospects of the Transaction Entities or their Subsidiaries considered as a whole that makes it impractical or inadvisable in the Representative’ judgment to proceed with the purchase or offering of the Shares as contemplated hereby.
(l) On the Firm Shares Closing Date, FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and agreements in connection with the Offering.
(m) The Company shall have furnished or caused to be furnished to the Representative such further customary certificates or documents as the Representative shall have reasonably requested.the
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Sources: Underwriting Agreement (Viasat Inc)