Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable: (a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto. (b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto. (c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto. (d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto. (e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto. (f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters. (g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement. (h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative. (i) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing. (j) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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. (k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule. (l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement. (m) The Shares shall have been approved for listing in the NYSE. (n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements. (o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement. (p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that: (i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof; (ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act; (iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and (iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP. (q) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request. (r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement. (s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding. (t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law. (u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement. (v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 4 contracts
Sources: Underwriting Agreement (Aames Investment Corp), Underwriting Agreement (Aames Investment Corp), Underwriting Agreement (Aames Investment Corp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each the Date of Delivery, as applicable, are several and not joint, and are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance by the Company of its respective obligations hereunder in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each the Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of MayerWolf, BrownBlock, ▇▇▇▇ & Maw Schorr and Solis-Cohen LLP, counsel for the CompanyCompany and its Subsidiari▇▇, the Subsidiaries and each ▇▇, wit▇ ▇▇▇▇▇▇▇ ▇o those portions of the opinions based upon the laws of any jurisdiction other Aames Transaction Partiesthan the United States, which opinion(s) shall be Pennsylvania or Delaware, counsel licensed in such jurisdiction, addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance reasonably satisfactory to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time Representative and on each Date of Delivery an opinion of MayerGibson, Brown, ▇▇▇▇ Dunn & Maw Crutcher LLP, special tax counsel for the CompanyUnderwriters, stating tha▇:
(▇) ▇he Company and the Subsidiaries listed on Schedule III ("Material Subsidiaries") each have been duly incorporated or organized and each are validly existing as corporations or limited liability companies in good standing under the laws of their respective jurisdictions of incorporation or organization with full corporate or limited liability company power and authority to own, lease, license and operate their respective assets and properties and to conduct their respective business as described in the other Aames Transaction PartiesRegistration Statement and Prospectus and, as to certain tax matters, which opinion shall be addressed to in the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date case of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, to execute and deliver this Agreement and to consummate the transactions described in this Agreement;
(ii) the Company and all of its Material Subsidiaries are duly qualified or licensed by each jurisdiction in which opinion(s) shall they conduct their respective businesses, and the Company and its Material Subsidiaries are duly qualified, and are in good standing, in each jurisdiction in which they own or lease real property or maintain an office and in which such qualification is necessary, except where the failure to be addressed so qualified or licensed and in good standing, individually and in the aggregate, would not have a Material Adverse Effect; except as provided in the law of the jurisdiction of incorporation or formation of such entity or pursuant to agreements of which such counsel has no knowledge or as disclosed in the Prospectus, the Material Subsidiaries are not prohibited or restricted, directly or indirectly, from paying dividends to the UnderwritersCompany, dated the Closing Time and each Date of Delivery and substantially or from making any other distribution with respect to such Material Subsidiaries' capital stock or from repaying to the effect Company any amounts which may from time to time become due under any loans or advances to such Material Subsidiaries from the Company, or from transferring such Material Subsidiaries' property or assets to the Company, except, in each case, as may be affected or limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity;
(iii) to the best of such counsel's knowledge, neither the Company nor any of its Material Subsidiaries is in breach or violation 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), its respective certificates of incorporation or charter or by-laws, any indenture, mortgage, deed of trust, loan or credit agreement or any other agreement or instrument to which the Company or any of its Material 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 its Material Subsidiaries, except such breaches or defaults which would not be reasonably likely to have a Material Adverse Effect;
(iv) the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement do not and will not (A) give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with, or result in any breach or violation of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of or default under), or require any consent or waiver, except for such consents or waivers which have been obtained and are in full force and effect, under, (i) any provisions of the certificate of incorporation, charter or by-laws of the Company or the Material Subsidiaries, (ii) to such counsel's knowledge, any provision of any material contract, franchise, permit, license, indenture, mortgage, deed of trust, loan, credit or other agreement or instrument to which the Company or the Material Subsidiaries is a party or by which any of them or their respective properties or assets may be bound or affected, (iii) any law or regulation binding upon or applicable to the Company or the Material Subsidiaries or any of their respective properties or assets normally applicable to transactions of the type contemplated by this Agreement, or (iv) to such counsel's knowledge, any decree, judgment or order known to such counsel to be applicable to the Company or the Material Subsidiaries; or (B) to the best of such counsel's knowledge, result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or assets of the Company or its Material Subsidiaries, except in the case of clauses (ii), (iii) and (iv) for such conflicts, breaches or defaults which have been validly waived or would not reasonably be expected to have a Material Adverse Effect or result in the creation or imposition of any material lien, charge, claim or encumbrance upon any property or asset of the Company or any of its Material Subsidiaries;
(v) 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 by the Company; this Agreement has been duly and validly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of the Company, enforceable against it in accordance with its terms, except as may be affected or limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except that enforceability of the indemnification and contribution provisions set forth on Exhibit D hereto.in Section 9 of this Agreement may be limited by the federal or state securities laws of the United States or public policy underlying such laws;
(dvi) The to such counsel's knowledge, no approval, authorization, consent, license, permit, certificate or order of or filing by or with any federal or state governmental or regulatory commission, board, body, authority or agency is required to be obtained or made by the Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger execution, delivery and performance of this Agreement, the consummation by the Company of the transaction contemplated hereby, and the sale and delivery of the Shares by the Company as contemplated hereby, other than such as have been obtained or made and are in full force and effect under the Securities Act and the Securities Act Regulations and such approvals as have been obtained and are in full force and effect in connection with the approval of the quotation of the Shares on the Nasdaq National Market, and except that such counsel need express no opinion as to any necessary qualification under the state securities or blue sky laws of the various jurisdictions in which opinions the Shares are being offered by the Underwriters or any approval of the underwriting terms and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLParrangements by the National Association of Securities Dealers, counsel for Underwriters.Inc.;
(gvii) The Representative shall [intentionally omitted]
(viii) the Company has authorized preferred stock and common stock as set forth in the Prospectus under the caption "Capitalization"; to such counsel's knowledge, all of the issued and outstanding shares of capital stock of the Company and its Material Subsidiaries have received been duly and validly authorized and issued and are fully paid and non-assessable and none of them was issued in violation of any preemptive or other similar right, and all of the issued and outstanding shares of capital stock of the Material Subsidiaries are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the Prospectus, to such counsel's knowledge, there are no outstanding (i) securities or obligations of the Company or its Material Subsidiaries convertible into or exchangeable for any capital stock of the Company or any of its Material Subsidiaries, (ii) warrants, rights or options to subscribe for or purchase from Ernst & Young LLP letters datedthe Company or any of its Material Subsidiaries any such capital stock or any securities or obligations convertible into or exchangeable for such capital stock, respectivelyor (iii) obligations, commitments, plans or arrangements of the Company or any of its Material Subsidiaries to issue any shares of capital stock, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; there are no statutory preemptive or other similar rights to subscribe for or to purchase or acquire any shares of capital stock of the Company or any such rights pursuant to the Company's certificate of incorporation or by-laws or any agreement or instrument known to such counsel to or by which the Company or any of its Material Subsidiaries is a party or bound or, to such counsel's knowledge, otherwise;
(ix) the Shares have been duly authorized, and when the Shares have been issued and duly delivered against payment therefor as contemplated by this Agreement, the Shares will be validly issued, fully paid and non-assessable, and the Underwriters will acquire good and marketable title to the Shares, free and clear of any pledge, lien, encumbrance, security interest, or other claim arising through the Company or otherwise;
(x) the issuance and sale of the Shares by the Company is not subject to preemptive or other similar rights arising by operation of law, under the certificate of incorporation, charter or bylaws of the Company, or, to such counsel's knowledge, under any agreement to which the Company or any of its Material Subsidiaries is a party;
(xi) to the best of such counsel's knowledge and except for Allied Capital Corporation and Allied Investment Corporation, there are no persons with registration or other similar rights to have any equity securities, including securities which are convertible into or exchangeable for equity securities, registered by the Company pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act;
(xii) the Shares conform in all material respects to the description thereof contained in the Registration Statement and Prospectus; the form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements and with any applicable requirements of the certificate of incorporation and by-laws of the Company and of the Nasdaq National Market;
(xiii) the capital stock of the Company conforms as to legal matters in all material respects to the description thereof set forth in the Prospectus under the caption "Description of Capital Stock;"
(xiv) the Registration Statement, including the Prospectus and such amendments to such Registration Statement as may be required prior to the date of this Agreement, has become effective under the Closing Time and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the SubsidiariesSecurities Act, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(i) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(j) Prior to the Closing Time and each Date of Delivery (i) no stop order preventing or suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus has been issuedissued and, to the best of such counsel's knowledge, no proceedings with respect thereto have been commenced or threatened; 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);
(xv) the Registration Statement, all Preliminary Prospectuses and the Prospectus and each amendment or supplement thereto (except as to the financial statements and other financial data contained therein, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Securities Act and the Securities Act Regulations;
(xvi) the statements under the captions "Capitalization," "Management's Discussion and Analysis of Financial Condition and Results of Operations - Liquidity and Capital Resources," "Our Business - Government Contracts," "Management - Management Compensation," "Description of Capital Stock," and "Material United States Income and Estate Tax Considerations to Non-United States Holders," in the Registration Statement and the Prospectus, insofar as such statements constitute a summary of the documents or legal matters referred to therein, constitute fair summaries thereof in all material respects and accurately present the information called for with respect to such documents or matters;
(xvii) to the best of such counsel's knowledge, there are no actions, suits or proceedings, inquiries, or investigations pending or threatened against the Company or any of its Material Subsidiaries or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which are required to be described in the Prospectus but are not so described;
(xviii) to the best of such counsel's knowledge, there are no contracts, leases or documents of a character which are required to be filed as exhibits to the Registration Statement or required to be described or summarized in the Prospectus which have not been so filed, summarized or described, and no proceedings for all such purpose shall have been initiated or threatened, by summaries and descriptions fairly and accurately set forth the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any material provisions of such purposes, shall have occurred; contracts and documents required to be shown;
(ii) all requests for additional information on the part of the Commission shall have been complied with; and (iiixix) none of the Company or any of its Material Subsidiaries is, or, if operated solely in the manner described in the Prospectus, will be, (i) an "investment company" or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company," as such terms are defined in the Investment Company Act, or (ii) a "broker" within the meaning of Section 3(a)(4) of the Exchange Act or a "dealer" within the meaning of Section 3(a)(5) of the Exchange Act or required to be registered pursuant to Section 15(a) of the Exchange Act; and
(xx) the Shares have been duly authorized for listing on the Nasdaq National Market, subject to notice of issuance. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, independent public accountants of the Company and representatives of the Representative, at which the contents of the Registration StatementStatement and Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Prospectus nor (except as and to the S-4 shall contain extent stated in subparagraphs (viii), (xii), (xiii), (xvi) and (xvii) above), on the basis of the foregoing, no facts have come to the attention of such counsel that lead them to believe that the Registration Statement at the time it became effective, contained an untrue statement of a material fact or omit omitted 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.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time , or that any Preliminary Prospectus or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing MemberProspectus, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correctamended or supplemented, as if made on of their respective effective or issue date, and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of themsuch counsel's opinion, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any contains an untrue statement of a material fact or omit omitted or omits 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.fa
Appears in 3 contracts
Sources: Underwriting Agreement (Opinion Research Corp), Underwriting Agreement (Opinion Research Corp), Underwriting Agreement (Opinion Research Corp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time (if applicable) an opinion and 10b-5 statement of Mayer, Brown, N▇▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & S▇▇▇▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters datedthe Company, respectively, as of addressed to the date of this Agreement, Underwriters and dated the Closing Time and each Date of Deliveryor the applicable Option Closing Time, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ib) On the date of this Agreement and at the Closing Time and at each Option Closing Time (if applicable), the Representative shall have received from RBSM LLP letters addressed to the Representative and dated the respective dates of delivery thereof and in form and substance satisfactory to the Representative, containing statements and information of the type customarily covered by an accountant’s “comfort letters” to underwriters delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin) issued in connection with underwritten public offerings including, without limitation, the audited and unaudited financial statements and the various other financial disclosures including any pro forma financial statements contained in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be.
(c) The Representative shall have received at the Closing Time and at each Option Closing Time (if applicable) an opinion and 10b-5 statement of O’Melveny & M▇▇▇▇ LLP, counsel to the Underwriters, addressed to the Representative and dated the Closing Time or the applicable Option Closing Time, as the case may be, and in form and substance satisfactory to the Representative.
(d) The Representative shall have received at the Closing Time and at each Option Closing Time (if applicable) an opinion of Nevada counsel to the Underwriters, addressed to the Representative and dated the Closing Time or the applicable Option Closing Time, as the case may be, and in form and substance satisfactory to the Representative.
(e) The Registration Statement shall have become effective not later than 5:30 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve. If Rule 430A under the Securities Act is used, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act at or before 5:30 p.m., New York City time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act).
(f) Any Rule 462(b) Registration Statement required to be filed prior to the sale of the Shares under the Securities Act shall have been filed on the date hereof and shall have become automatically effective upon such filing.
(g) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jh) Prior to the Closing Time and each Date of Delivery Option Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatenedor, to the Company’s knowledge, threatened by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company shall not have become the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares.
(ki) All filings with the Commission required by Rule 424 under the Securities Act (including the information required by Rule 430A under the Securities Act) to have been filed by the Closing Time shall have been made in the manner and within the applicable time period prescribed for such filing by such Rule.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Option Closing Time, (i) there shall not have been any Material Adverse Change Change; and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in the NYSEon Nasdaq.
(nl) The NASD FINRA shall not have raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsor other arrangements of the transactions contemplated hereby.
(om) The On or prior to the date hereof, the Representative shall have received lockLock-up agreements Agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached heretoLock-Up Persons, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pn) The Company and each Transaction Party shallshall furnish to the Underwriters, at the Closing Time and on at each Date of DeliveryOption Closing Time (if applicable), deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or its Chief Financial Officer, General Partner dated the Closing Time or Managing Member, as applicablethe applicable Option Closing Time, to the effect that:
(i) the representations representations, warranties, and warranties covenants of the Company and the Transaction Parties in this Agreement are true and correct, with the same force and effect as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed under this Agreement or satisfied at or prior to the date hereofsuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened by the Commission under the Securities Act;; and
(iii) when for the Registration Statement period from and S-4 became effective including the date of this Agreement through and at all times subsequent thereto up including such date, there has not occurred any Material Adverse Change.
(o) The Company shall furnish to the Underwriters, as of the date hereof, at the Registration Statement Closing Time and at each Option Closing Time (if applicable), a certificate of its Chief Financial Officer, dated the Closing Time or the applicable Option Closing Time, with respect to certain financial data contained in the Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed substance satisfactory to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPRepresentative.
(qp) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters and counsel for the Underwriters such other documents information, documents, opinions and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters or their counsel may reasonably request.
(r) (A) The Merger Agreement effecting , and all proceedings taken by the First Merger Company in connection with the issuance and the Second Merger shall have been duly authorized by all necessary corporate action on the part sale of the Company, each Subsidiary Shares as contemplated herein and each Transaction Party, as applicable; (B) as of in connection with the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the other transactions contemplated by this Agreement shall be satisfactory in form and substance to the Representative and counsel for the Underwriters. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice from the Representative to the Company at any time on or otherwise adversely affect prior to the ability Closing Time and, with respect to the Option Shares, at any time on or prior to the applicable Option Closing Time, which termination shall be without liability on the part of any party hereto to fulfill its obligations under this Agreementany other party, except that Sections 5, 7, and 9 shall at all times be effective and shall survive such termination.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 3 contracts
Sources: Underwriting Agreement (Synergy CHC Corp.), Underwriting Agreement (Synergy CHC Corp.), Underwriting Agreement (Synergy CHC Corp.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Operating Partnership in Section 3 hereof, in each case on the date hereof and at the Closing Time and on each Date of Delivery, as if made on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, to the performance in all material respects by the Company and the Transaction Parties Operating Partnership of their respective obligations hereunder, hereunder to be performed at or prior to the Closing Time and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion and letter of Mayer, Brown, ▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇▇ LLP, corporate counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery and substantially to the effect Delivery, as set forth on Exhibit in Exhibits A and B hereto, respectively.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as set forth in Exhibit C hereto.
(c) On the case may bedate of this Agreement and at the Closing Time and each Date of Delivery (if applicable), the Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated the respective dates of delivery thereof and addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeUnderwriters, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Financial Statements and certain financial statements, including any pro forma financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Date of Delivery (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Date of Delivery, decreases in total assets or retained earnings or increases in borrowingsas the case may be.
(d) The Underwriters shall have received at the Closing Time and on each Date of Delivery (i) an opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, it shall be a further condition to counsel for the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company Underwriters, as to the significance thereof, unless the Representative deems such explanation unnecessarycertain federal income tax matters, and (Bii) such changesan opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, decreases or increases do notcounsel for the Underwriters, as to certain matters under the Investment Company Act, addressed to the Representatives and dated the Closing Time and each Date of Delivery, as set forth in Exhibits D and E hereto, respectively. In addition, the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative Underwriters shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the underwriters, dated the Closing Time or such and each Date of Delivery, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(ie) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Representatives shall have reasonably objected in writingwriting prior to the filing thereof.
(jf) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all reasonable requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingRepresentatives.
(kg) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Delivery, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementProspectus and the Disclosure Package.
(mi) The Shares shall have been approved for listing in on the NYSE, subject to notice of issuance.
(nj) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, substantially in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed F hereto signed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth persons listed in Section 4(q)(E) of this AgreementSchedule III hereto.
(pk) The Company and each Transaction Party shallRepresentatives shall have received, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman two of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableCompany’s executive officers, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or such Date of Delivery, as applicable, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements of their respective obligations hereunder and satisfied in all material respects all of the conditions on its their part to be performed or satisfied at or prior to the date hereofClosing Time or such Date of Delivery, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered its subsidiaries taken as one enterprise, except transactions entered into in the ordinary course of businessa whole, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprisea whole, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiarya whole, or (fE) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Properties which has been sustained or will have been sustained which, individually or in the aggregate, has which would reasonably be expected to have a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and ; and
(iv) above, may limit certification the Commission has not notified the Company of the matters set forth in subclause (i) above any objection to the representations, warranties and agreements use of SFP an “automatic shelf registration statement” (as defined in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPRule 405).
(ql) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may have reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable requested prior to the Representativedate hereof.
Appears in 2 contracts
Sources: Underwriting Agreement (Northstar Realty Finance Corp.), Underwriting Agreement (Northstar Realty Finance Corp.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective obligations hereunder, hereunder and under the Custody Agreement and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Option Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(bi) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal ▇ & ▇▇▇▇▇▇ LLPPC, special Pittsburgh, Pennsylvania, counsel for SFPthe Company and the Subsidiaries, which opinion(sand (ii) shall be opinion of foreign counsel, each addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough LLP, Washington, DC, counsel for the Underwriters, to the effect set forth substantially in Exhibit B.
(b) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC, as counsel to the Selling Stockholders other than the Rockwell Holdings, Inc. Charitable Remainder Trust, shall furnish to the Underwriters at the Closing Time and on each Option Closing Time an opinion for each of the Selling Stockholders, addressed to the Underwriters and dated the Closing Time and each Option Closing Time and in form and substance satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, to the effect set forth substantially in Exhibit C-1, and ▇▇▇▇ ▇▇▇▇▇, as counsel to the Rockwell Holdings, Inc. Charitable Remainder Unitrust shall furnish to the Underwriters at the Closing Time and on each Option Closing Time an opinion for each of the Selling Stockholders, addressed to the Underwriters and dated the Closing Time and each Option Closing Time and in form and substance satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, to the effect set forth substantially in Exhibit C-2.
(gc) The On the date of this Agreement and at the Closing Time and each Option Closing Time (if applicable), the Representative shall have received from Ernst & Young LLP ParenteBeard LLC letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered in forms heretofore approved by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hd) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or any prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s ’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing inclusion in The Nasdaq Global Market subject only to notice of issuance at or prior to the NYSEtime of purchase.
(nk) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative shall have received lockLock-up agreements from each officer, director, and 1% or greater stockholder Up Letter Agreements contemplated by Section 5(v) of the Company and Aames Financial I, in the form of Exhibit A attached hereto, this Agreement and such letter agreements Lock-Up Letter Agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided.
(n) The Selling Stockholders will, that at the certificate delivered by Closing Time and on each Option Closing Time, deliver to the applicable officers of SFP may omit Underwriters a certificate, to the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause effect that:
(i) above to the representations, representations and warranties and agreements of SFP the Selling Stockholders set forth in this Agreement and may limit certification in the Custody Agreement are true and may limit certification correct as of such date; and
(ii) the matters set forth in subclause (iii) above Selling Stockholders have complied with all the agreements and satisfied all the conditions on its part to information, facts be performed or satisfied hereunder and events relating under the Custody Agreement at or prior to SFPthe date hereof.
(qo) The Company and each Transaction Party, as applicable, the Selling Stockholders shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained hereinherein and in the Custody Agreement, and the performance by the Company and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 2 contracts
Sources: Underwriting Agreement (ExOne Co), Underwriting Agreement (ExOne Co)
Conditions of the Underwriters’ Obligations. (a) The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Stockholders hereunder and under the Agreement and Power of Attorney on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective obligations hereunder, hereunder and under the Agreement and Power of Attorney and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ Godward LLP, Maryland counsel for the CompanyCompany and the Subsidiaries, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and in form and substance substantially to the effect as set forth on Exhibit D Attachment I hereto.
(dc) The Company Each Selling Stockholder shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇counsel for such Selling Stockholder, ▇▇.such counsel to be acceptable to the Representatives, Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance satisfactory to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time Representatives and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Underwriters.
(gd) The Representative Representatives shall have received from Ernst & Young LLP Young, LLP, letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative Representatives shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ and ▇▇▇▇ LLP dated the Closing Time or such Date of Delivery, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(if) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(jg) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, Statement and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing inclusion in the NYSENASDAQ National Market.
(nk) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative Representatives shall have received lock-up agreements from each officer, director, Selling Stockholder and 1% or greater stockholder stockholders of the Company and Aames Financial Iholding at least the number of shares described as being subject to lock-up agreement in the Prospectus, in the form of Exhibit A B attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) to such Officer’s knowledge (A) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and (B) no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofthereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themthereto, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 Statement and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided.
(n) Each Selling Stockholder will, that at the certificate delivered by Closing Time and on each Date of Delivery, deliver to the applicable officers of SFP may omit Underwriters a certificate, to the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause effect that:
(i) above to the representations, representations and warranties and agreements of SFP such Selling Stockholder set forth in this Agreement and may limit certification in the Agreement and may limit certification Power of the matters set forth in subclause (iii) above to information, facts Attorney are true and events relating to SFP.correct as of such date; and
(qii) The Company such Selling Stockholder has complied with all the agreements and each Transaction Party, as applicable, shall have furnished satisfied all the conditions on its part to be performed or satisfied hereunder and under the Agreement and Power of Attorney at or prior to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably requestdate hereof.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 2 contracts
Sources: Underwriting Agreement (Website Pros Inc), Underwriting Agreement (Website Pros Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares the Capital Securities at the Closing Time or on each the Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company Trust and the Transaction Parties hereunder Company in all material respects on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance by the Trust and the Company of their respective obligations hereunder in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each the Date of Delivery, as applicable:
(a) The Company Representatives shall furnish to the Underwriters at the Closing Time and have received on each Closing Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of from ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters datedto the Company and the Trust, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may bean opinion or opinions, addressed to the RepresentativeRepresentatives and dated such Closing Date, in form and substance satisfactory to the RepresentativeUnderwriters and stating in effect that:
(i) The Company is duly registered with the Office of Thrift Supervision as a savings and loan holding company under the HOLA and has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware. The Bank has been duly organized and is validly existing as a federally-chartered stock savings bank with the Office of Thrift Supervision. Each of the Subsidiaries (other than the Bank) has been duly organized and is validly existing as a corporation in good standing under the laws of its respective state of incorporation. The Company and each Subsidiary is duly qualified and in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, relating 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 statements, including any pro forma financial statements, condition of the Company and the Subsidiaries, taken as a whole, and have all corporate power necessary to own or hold their respective properties and to conduct the business in which they are engaged as described in the Prospectus. The deposit accounts of the Bank are insured by the Bank Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceedings for the termination of such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above insurance are pending or threatened.
(ii) The Company's capitalization is as set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations Prospectus; all of the Underwriters that (A) such letters shall be accompanied by a written explanation issued and outstanding shares of capital stock of each of the Subsidiaries have been duly and validly authorized and issued and are fully paid and non-assessable; and no holder of any security of the Company as has the right, under the Company's certificate of incorporation or by-laws or any agreement or instrument known to the significance thereofsuch counsel, unless the Representative deems to have any security owned by such explanation unnecessary, and (B) such changes, decreases or increases do not, holder included in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement. To the best knowledge of such counsel, all of the issued and outstanding capital stock of the Subsidiaries is owned directly or indirectly by the Company or the Bank, free and clear of all liens, encumbrances, equities or claims.
(hiii) The Representative shall have received Registration Statement was declared effective under the Securities Act at the Closing Time time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPdate specified in such counsel's opinion, dated the Closing Time or such Date of Delivery, addressed and to the Representative and in form and substance satisfactory to the Representative.
(i) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(j) Prior to the Closing Time and each Date best knowledge of Delivery (i) such counsel, no stop order or other order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
(iv) The Registration Statement and the Prospectus and any further amendments or supplements thereto made by the Company prior to such purpose shall have been initiated or threatenedClosing Date (other than the financial statements and related notes and schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the Securities Act Regulations; and the documents incorporated by reference in the Prospectus (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission promulgated thereunder.
(v) All the conditions necessary for the use of Form S-3 in connection with the issuance and sale of the Capital Securities, the Guarantee and the Debentures have been satisfied by the Company and the Trust.
(vi) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority is required in connection with the execution and delivery by the Company and the Trust of the Operative Documents and the consummation of the transactions contemplated thereby except (A) as may be required under the Exchange Act or the Blue Sky laws of the various states of the United States in connection with any sales of Capital Securities therein or (B) as have already been obtained or made.
(vii) This Agreement has been duly authorized, executed and delivered by the Company and the Trust and constitutes a valid and binding agreement of the Company and the Trust enforceable against each of them in accordance with its terms, except as enforceability thereof may be limited by (A) the application of bankruptcy, reorganization, insolvency and other laws affecting creditors' rights generally, and (B) equitable principles being applied at the discretion of a court before which any proceeding may be brought.
(viii) To the best knowledge of such counsel, neither the Company nor any Subsidiary is in violation of or conflict with any term or provision of its charter or bylaws or other governing documents and neither the Company nor any Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule, regulation, directive, policy or guideline to which it or its property may be subject, except for such violations which could not individually or in the aggregate, have a material adverse effect on the Company and the Subsidiaries, taken as a whole.
(ix) To the best knowledge of such counsel, no default exists, and no suspension event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company or any Subsidiary of any material agreement, indenture, mortgage, deed of trust, note or any other material agreement or material instrument to which the Company or any Subsidiary is a party or by which it or its respective properties or businesses may be bound.
(x) The execution, delivery and performance of the qualification Operative Documents by the Company and the Trust and the consummation of the Shares for offering transactions contemplated hereby and thereby will not conflict with or sale result in the breach or violation of any jurisdictionterm or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the initiation creation or threatening imposition of any proceedings for lien, charge, claim, encumbrance or security interest on any properties or assets of the Company or any Subsidiary pursuant to the terms of, any material agreement, indenture, mortgage or other material agreement or material instrument known to such counsel to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or to which any of the property or assets of the Company or the Subsidiaries is subject, nor will such purposesactions violate the charter or bylaws or other governing document of the Company or any Subsidiary or any applicable law, shall rule or administrative regulation of any court or governmental agency or governmental authority having jurisdiction over the Company or any Subsidiary or any of their respective properties, except for such violations which could not have, individually or in the aggregate, a material adverse effect on the Company and the Subsidiaries, taken as a whole..
(xi) To the best knowledge of such counsel, there are no contracts or other documents which are required to be described in the Prospectus or filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Regulations which have occurrednot been so described or filed as required.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or any Subsidiary is or may be a party or of which the business or property of the Company or any Subsidiary is or may be subject in either case that is required to be disclosed in the Prospectus.
(xiii) The Declaration has been duly authorized, executed and delivered by the Company.
(xiv) The Indenture has been duly authorized, executed and delivered by the Company and (assuming due authorization, execution and delivery thereof by the Debenture Trustee) constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and general equitable principles (whether considered in a proceeding in equity or at law); and the Debentures have been duly authorized, executed, issued and delivered by the Company as contemplated in the Indenture and (assuming due authentication by the Debenture Trustee) constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their term, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and general equitable principles (whether considered in a proceeding in equity or at law).
(xv) The Guarantee Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Guarantee Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and general equitable principles (whether considered in a proceeding in equity or at law).
(xvi) The statements contained in the Prospectus under the caption "Certain United States Federal Income Tax Consequences" are accurate in all material respects and constitute a fair summary of the matters set forth therein.
(xvii) Each of the Company and the Subsidiaries owns, possesses or has obtained all Authorizations and has made all Filings of, from and with all governmental or regulatory bodies and any other person or entity, required under the laws of the States of New York, New Jersey, Connecticut and Delaware, the United States and any other jurisdiction in which the Company or any of the Subsidiaries transacts business in order to own or lease, as the case may be, and to operate its respective properties and to conduct its respective business as presently conducted and as described in the Prospectus, except where the failure to own, possess, obtain or make such Authorization or Filing would not have a material adverse effect on the assets or properties, business, results of operations, prospects or financial condition of the Company and the Subsidiaries, taken as a whole; to the best of knowledge of such counsel, all of such Authorizations are in full force and effect, and neither the Company nor the Subsidiaries has received any notice of proceedings relating to any revocation or modification thereof.
(xviii) To the best knowledge of such counsel, the businesses of the Company and the Subsidiaries has been conducted in compliance in all material respects with all applicable laws and the regulations, orders and policies of the Office of Thrift Supervision, the FDIC, the Commission and each other Governmental Authority, which laws are material to the operations of the Company and the Subsidiaries taken as a whole.
(xix) The statements in the Prospectus under the captions "Description of Capital Securities," "Description of Subordinated Debentures," "Description of Guarantee" and "Relationship Among the Capital Securities, the Subordinated Debentures and the Guarantee," insofar as such statements constitute a summary of documents referred to therein or matters of law, are fair summaries in all material respects and accurately present the information called for with respect to such documents and matters.
(xx) Except as set forth (or referred to) in the Prospectus, or incorporated by reference therein, to the best knowledge of such counsel, there are no contractual encumbrances or restrictions, or material legal restrictions on the ability of any of the Subsidiaries (i) to pay dividends or make any other distributions on its capital stock or to pay indebtedness owed to the Company, (ii) all requests for additional information on to make any loans or advances to, or investments in, the part of the Commission shall have been complied with; and Company, or (iii) none to transfer any of its properties or assets to the Company.
(xxi) Neither the Trust nor the Company nor any Subsidiary is required to register as an investment company under the Investment Company Act as a result of the transactions contemplated by the Operative Documents. To the extent deemed advisable by such counsel, they may rely as to matters of fact on certificates of responsible officers of the Company, the Subsidiaries 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 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, including Underwriters' counsel, and representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement, Statement and the Prospectus nor and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the S-4 shall contain an accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus (relying as to materiality to a large extent upon the opinions and representations of officers and other representatives of the Company), 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 the Registration Statement became effective (except with respect to the financial statements and notes thereto and other financial and statistical data contained therein, as to which such counsel need express no opinion or belief) contained any untrue statement of a material fact or omit 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 and notes thereto and other financial and statistical data contained therein, as to which such counsel need make no statement or express any opinion or belief) on the date thereof and on such Closing Date 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.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mb) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Representatives shall have received lock-up agreements on each Closing Date from each officer______________, directoras special Delaware counsel to the Trust and the Company, an opinion or opinions, addressed to the Representatives and dated such Closing Date, in form and substance satisfactory to counsel for the Underwriters, and 1% or greater stockholder of the Company and Aames Financial I, stating in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) The Trust has been issued duly created and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 2 contracts
Sources: Underwriting Agreement (Haven Bancorp Inc), Underwriting Agreement (Haven Bancorp Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties each Selling Stockholder hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties each Selling Stockholder of their respective obligations hereunder, hereunder and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The the Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time, as applicable, an opinion of Mayer, Brown, ▇▇▇▇ & Maw Sidley Austin LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed counsel satisfactory to the Underwriters, who may be an officer of the Company, addressed to the Underwriters and dated as of the Closing Time and each Date of Delivery Option Closing Time, as applicable, and in form and substance satisfactory to ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters, substantially to in the effect form set forth on Exhibit B hereto.Exhibits B-1 and B-2, respectively;
(b) The Company the Selling Stockholders shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction PartiesOption Closing Time, as to certain tax mattersapplicable, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. & ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFPthe Selling Stockholders, which opinion(s) shall be and Hunton & ▇▇▇▇▇▇▇▇ LLP, special Virginia counsel for the Selling Stockholders, addressed to the Underwriters, Underwriters and dated as of the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger AgreementTime, which opinions and reliance letters shall be as applicable, in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters., substantially in the form set forth on Exhibit C hereto;
(gc) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of on the date of this Agreement, Agreement and at the Closing Time and each Date of DeliveryOption Closing Time, as applicable, the case may be, Representatives shall have received from PricewaterhouseCoopers LLP letters dated the respective dates of delivery thereof and addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma statements and certain financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. ; provided, however, that the letters delivered at the Closing Time and each Option Closing Time, as applicable, shall use a “cut-off” date no more than three business days prior to such Closing Time and on each Option Closing Time, as the case may be; In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowingsborrowings to the amounts disclosed in the Registration Statement, Disclosure Package and Prospectus, it shall be a further condition to the obligations of the Underwriters that (Ai) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems Representatives deem such explanation unnecessary, and (Bii) such changes, decreases or increases do not, in the sole judgment of the RepresentativeRepresentatives, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.;
(hd) The Representative the Representatives shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Chance US LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative Representatives and in form and substance satisfactory to the Representative.Representatives;
(ie) No the Registration Statement shall have become effective;
(f) no amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.;
(jg) Prior prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(kh) All all filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.;
(li) Between between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or any prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.;
(mj) The the Shares shall have been approved for listing in the NYSE.included on The Nasdaq Global Select Market;
(nk) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.;
(ol) The Representative the Representatives shall have received lock-up agreements from each officer, director, director and 1% or greater stockholder of the Company listed on Schedule V and Aames Financial Ieach Selling Stockholder, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.;
(pm) The Company and each Transaction Party shallSelling Stockholder will, at the Closing Time and on each Date Option Closing Time, as applicable, deliver to the Underwriters a certificate of Deliveryits President, Secretary or Treasurer, to the effect that the representations and warranties of the Selling Stockholder set forth in this Agreement are true and correct, as if made on and as of the Closing Time or any Option Closing Time, as applicable, and the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time or any Option Closing Time, as applicable;
(n) the Company will, at the Closing Time and at each Option Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, President and Chief Executive Officer, President, Chief Operating Officer or Executive Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableCounsel, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;; and
(iii) the signer of such certificate has carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(ivo) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction PartySelling Stockholder, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties such Selling Stockholder of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 2 contracts
Sources: Underwriting Agreement (FBR Capital Markets Corp), Underwriting Agreement (Arlington Asset Investment Corp.)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time of Purchase and on each Date Additional Time of DeliveryPurchase, as applicableif any, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and the satisfaction of to the following further additional conditions at the Closing Time or on each Date of Delivery, as applicableprecedent:
(a) The Company shall furnish to the Underwriters at the Closing Time of Purchase and on each Date Additional Time of Delivery Purchase, if any, an opinion and negative assurance statement of Mayer, Brown, The ▇▇▇▇ & Maw LLP▇▇▇ Firm, PLLC, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, and dated the Closing Time of Purchase or the Additional Time of Purchase, as the case may be, in form and each Date of Delivery and substantially substance satisfactory to the effect set forth on Exhibit B heretoUnderwriters.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries Purchase and each Additional Time of the other Aames Transaction PartiesPurchase, as to certain tax mattersif any, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, and dated the Closing Time of Purchase or the Additional Time of Purchase, as the case may be, in form and substance satisfactory to the Underwriters.
(c) The Underwriters shall have received from GBH CPAs, PC letters dated, respectively, the date of this Agreement and the Time of Purchase and each Date Additional Time of Delivery Purchase, if any, and substantially addressed to the effect set forth on Exhibit D heretoUnderwriters in the forms satisfactory to the Underwriters, which letters shall cover the various financial disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus.
(d) The Company Underwriters shall furnish to the Underwriters have received at the Closing Time of Purchase and on each Date Additional Time of Delivery an opinion Purchase, if any, the negative assurance statement of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as dated the Time of Purchase or the date Additional Time of this Agreement, the Closing Time and each Date of DeliveryPurchase, as the case may be, addressed to the Representative, in form and substance reasonably satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration StatementUnderwriters.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Underwriters Representative shall have objected in writing.
(jf) The Registration Statement shall be effective under the Act and any registration statement required to be filed, prior to the sale of the Shares, under the Act pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act. The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New York time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Act).
(g) Prior to and at the Closing Time of Purchase and each Date Additional Time of Delivery Purchase, if any, (i) no stop order suspending with respect to the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been issued under the Act or proceedings initiated under Section 8(d) or threatened, by the Commission, and no suspension 8(e) of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurredAct; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement and all amendments thereto shall not contain an untrue statement of a material fact or 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, therein not misleading.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when none of the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act Preliminary Prospectuses or the Exchange Act and the applicable rules and regulations of the Commission thereunderProspectus nor any amendment or supplement thereto, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not shall include any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent neither the Disclosure Package, nor any amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(h) The Company will, at the Time of Purchase and each Additional Time of Purchase, if any, deliver to the respective dates as Underwriters a certificate of which information is given its Chief Executive Officer and its Principal Financial Officer, dated the Time of Purchase, in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material a form satisfactory to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause Representative.
(i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification The Underwriters shall have received each of the matters set forth signed Lock-Up Agreements referred to in subclause (iiiSection 3(ll) above to informationhereof, facts and events relating to SFPeach such Lock-Up Agreement shall be in full force and effect at the Time of Purchase and each Additional Time of Purchase, if any.
(qj) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the ProspectusStatement, the representationsDisclosure Package, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of Prospectus or any conditions contained herein or therein, Permitted Free Writing Prospectus as of the Closing Time or any Date of DeliveryPurchase and each Additional Time of Purchase, if any, as the Underwriters Representative may reasonably request.
(r) (Ak) The Merger Agreement effecting the First Merger and the Second Merger Shares shall have been duly authorized by all necessary corporate action approved for listing on NYSE MKT, subject only to notice of issuance at or prior to the part Time of Purchase or the Company, each Subsidiary and each Transaction PartyAdditional Time of Purchase, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreementcase may be.
(sl) All outstanding optionsFINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 arrangements of the Delaware General Corporation Lawtransactions, contemplated hereby.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Actinium Pharmaceuticals, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer, Brown, S▇▇▇▇▇▇▇ Ronon S▇▇▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇Y▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be Company and the Subsidiaries addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇N▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough LLP, Washington, DC, counsel for the Underwriters., to the effect set forth substantially in Exhibit B.
(gb) The On the date of this Agreement and at the Closing Time and each Option Closing Time (if applicable), the Representative shall have received from Ernst & Young McGladrey LLP letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered in forms heretofore approved by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hc) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of N▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & S▇▇▇▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(id) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve.
(e) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jf) Prior to the Closing Time and each Date of Delivery Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or any prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mi) The Shares shall have been approved for listing inclusion in The Nasdaq Global Market subject only to notice of issuance at or prior to the NYSEtime of purchase.
(nj) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ok) The Representative shall have received lockLock-up agreements from each officer, director, and 1% or greater stockholder Up Letter Agreements contemplated by Section 4(s) of the Company and Aames Financial I, in the form of Exhibit A attached hereto, this Agreement and such letter agreements Lock-Up Letter Agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pl) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qm) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Atlantic Coast Financial CORP)
Conditions of the Underwriters’ Obligations. (a) The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company of its obligations hereunder and to the Transaction Parties of their respective obligations hereunder, and the reasonable satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Brown, Raysman, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company and the Subsidiaries, addressed to the Underwriters and dated the Closing Time and each Date of Delivery and in form and substance reasonably satisfactory to Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on attached as Exhibit C hereto.B;
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇Ashurst, LLP, Maryland U.K. counsel for the CompanyCompany and the Subsidiaries, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance reasonably satisfactory to ▇▇Mayer, Brown, ▇▇▇▇ & ▇▇▇▇▇▇▇ Maw LLP, counsel for the Underwriters., and attached as Exhibit C;
(gd) The Representative shall have received from Deloitte and Touche LLP and Ernst & Young LLP LLP, letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statementsinformation, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes increases in indebtedness, indebtedness or decreases in total assets or retained earnings or increases in borrowingsearnings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇Mayer, Brown , ▇▇▇▇ & ▇▇▇▇▇▇▇ Maw LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(if) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(jg) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, Statement and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable with respect to the Company shall have been entered into by the Company or any of the Subsidiaries, in each caseCompany, which in the Representative’s 's sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing inclusion in the NYSENASDAQ National Market.
(nk) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative shall have received lock-up agreements from each officer, director, and 15% or greater stockholder of the Company and Aames Financial ICompany, substantially in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, correct and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofthereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themthereto, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 Statement and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) except as may be described in the Registration Statement and the Prospectus, any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qn) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Allied Healthcare International Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Operating Partnership hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicableapplicable (as if made on and as of such date), the performance in all material respects by the Company and the Transaction Parties Operating Partnership of their respective obligations hereunder, hereunder and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Delivery, as applicable, an opinion of Mayer, Brown, ▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇ LLP, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery Delivery, as applicable, and substantially in form and substance satisfactory to counsel for the Underwriters to the effect set forth on in Exhibit A and Exhibit B heretohereto and to such further effect as counsel to the Underwriters may reasonably request.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax in-house counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, Underwriters and dated the Closing Time and substantially each Date of Delivery and in form and substance satisfactory to counsel for the Underwriters to the effect set forth on in Exhibit C heretohereto and to such further effect as counsel to the Underwriters may reasonably request.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ Lovells US LLP, special Maryland counsel for of the Company, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance satisfactory to counsel for the Underwriters to the effect set forth on in Exhibit D heretohereto and to such further effect as counsel to the Underwriters may reasonably request.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative Representatives shall have received from Ernst & Young LLP letters dated, respectively, a letter dated as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the Representative, Representatives relating to (A) the combined financial statements, including any pro forma financial statementsstatements (if any), of the Company and (B) the Subsidiariesaudited combined balance sheets of Crystal Gateway Marriott as of December 31, 2012, and 2011, and the related combined statements of operations and comprehensive income, equity and cash flows for each of the three years in the period ended December 31, 2012, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative Representatives shall have received from Deloitte & Touche LLP a letter dated as of the date of this Agreement addressed to the Representatives, in form and substance satisfactory to the Representatives relating to the audited balance sheets of Pier House Resorts as of December 31, 2012 and 2011, and the related statements of operations and comprehensive income, ventures’ equity, and cash flows for the three years then ended, and such other matters customarily covered by comfort letters issued in connection with registered public offerings.
(f) The Representatives shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(ig) No amendment or supplement to the Registration Statement Statement, the General Disclosure Package or the Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jh) Prior to the Closing Time and each Date of Delivery (i) the Registration Statement shall be effective with the Commission and no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus preliminary prospectus or Prospectus has shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the General Disclosure Package and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(ki) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a Material Adverse Change Effect, whether or not arising in the ordinary course of business, and (ii) no transaction which that is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which that in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in on the NYSENew York Stock Exchange, subject only to official notice of issuance.
(nl) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(om) The Representative Representatives shall have received lock-up agreements from each officer, director, executive officer and 1% or greater stockholder director of the Company and Aames Financial I, substantially in the form of Exhibit A attached E hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pn) The Company and each Transaction Party shall, Representatives shall have received at or before the applicable Closing Time and on each the applicable Date of Delivery, deliver to the Underwriters a certificate of its the Company’s Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its their part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and General Disclosure Package or the Prospectus, there has not been (aA) any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a Material Adverse ChangeEffect, whether or not arising in the ordinary course of business, (bB) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (eE) any dividend or distribution of any kind declared, paid or made on the capital stock or other equity interests of the Company or any Subsidiary, or (fF) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which Subsidiary that has been sustained or will have been sustained which, individually that has or in the aggregate, has may reasonably be expected to have a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qo) The Representatives shall have received as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, an officers’ certificate, executed on behalf of the Company by the Chief Financial Officer of the Company and the Chief Accounting Officer of the Company in form and substance satisfactory to counsel for the Underwriters.
(p) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the General Disclosure Package and the Prospectus, the representations, warranties and statements of the Company or the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time hereof, and on each Date the date of Deliverythe closing of the purchase of the Firm Shares or the Additional Shares, as applicablethe case may be (each, a “Closing Date”), the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and the satisfaction of to the following further additional conditions at the Closing Time or on each Date of Delivery, as applicableprecedent:
(a) The Company shall furnish to the Underwriters at the Closing Time and you on each Closing Date opinions of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the Underwriters, and dated the time of purchase or the additional time of purchase, as the case may be, in forms reasonably acceptable to the Representatives.
(gb) The Representative Company shall furnish to you on each Closing Date an opinion of The Pepeliaev Group, special local counsel for Selecta (RUS) Limited Liability Company, addressed to the Underwriters, and dated the time of purchase or the additional time of purchase, as the case may be, in a form reasonably acceptable to the Representatives Exhibit D.
(c) The Company shall furnish to you on each Closing Date an opinion of Wolf, Greenfield & Sacks, P.C., special counsel for the Company with respect to certain patents and proprietary rights, addressed to the Underwriters, and dated the time of purchase or the additional time of purchase, as the case may be, in a form reasonably acceptable to the Representatives.
(d) The Company shall furnish to you on each Closing Date an opinion of the general counsel of the Company with respect to certain patents and proprietary rights, addressed to the Underwriters, and dated the time of purchase or the additional time of purchase, as the case may be, in a form reasonably acceptable to the Representatives.
(e) You shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time Agreement and each Date of DeliveryClosing Date, as the case may be, and addressed to the Representative, Underwriters in form and substance the forms satisfactory to the RepresentativeRepresentatives, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such which letters shall be accompanied by a written explanation of cover, without limitation, the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, various financial disclosures contained in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement, the Disclosure Package and the Prospectus.
(hf) The Representative You shall have received at the Closing Time and on each Closing Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Time time of purchase or such Date the additional time of Deliverypurchase, addressed to as the Representative and case may be, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(ig) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Underwriters you shall have reasonably objected (as soon as practicable) in writing.
(jh) Prior The Registration Statement, the Exchange Act Registration Statement and any registration statement required to be filed, prior to the sale of the Shares, under the Act pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act or the Exchange Act, as the case may be. If Rule 430A under the Act is used, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New York City time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Act).
(i) At each Closing Time and each Date of Delivery Date, (i) no stop order suspending with respect to the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been issued under the Act or proceedings initiated under Section 8(d) or threatened, by the Commission, and no suspension 8(e) of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurredAct; (ii) all requests for additional information on the part Registration Statement (as of the Commission Applicable Time), when taken together with any amendments thereto, shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or omit to state a material fact which is required to be stated therein or necessary to make the statements therein not misleading; or (iii) the Disclosure Package, the Preliminary Prospectus or the Prospectus, taken together with any amendment or supplement thereto, or any Permitted Free Writing Prospectus or Permitted Exempt Written Communications (in each case, when taken together with the Disclosure Package), if any, shall not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pj) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryClosing Date, deliver to the Underwriters you a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or its Chief Financial Officer, General Partner or Managing Memberdated such Closing Date, as applicablethe case may be, to the effect that:
(iA) He has reviewed the Registration Statement, the Disclosure Package and the Prospectus.
(B) The representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, correct as if made on at and as of the date hereofsuch Closing Date, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;such Closing Date; and
(iiC) no No stop order or other order suspending the effectiveness of the Registration Statement or any post-effective part thereof or any amendment thereto thereof or the S-4qualification of the Securities for offering or sale, nor suspending or preventing the use of the Disclosure Package, the Prospectus or any issuer free writing prospectus, has been issued, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings proceeding for that purpose have has been instituted or, to the best of their knowledge, is contemplated by the Commission or are pending any state or threatened under the Securities Act;regulatory body.
(iiik) when The Company will, on the date hereof and on each Closing Date, deliver to you a certificate of its Chief Financial Officer, with respect to certain financial data in the Registration Statement and S-4 became effective and at all times subsequent thereto up to Statement, dated the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any time of them, contained all material information required to be included therein by the Securities Act purchase or the Exchange Act and the applicable rules and regulations additional time of the Commission thereunderpurchase, as the case may be, in the form and in all material respects conformed substance reasonably satisfactory to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPRepresentatives.
(ql) The Company You shall have received each of the signed Lock-Up Agreements referred to in Section 3(z) hereof, and each Transaction Partysuch Lock-Up Agreement shall be in full force and effect.
(m) On or prior to such Closing Date, as applicable, the Company shall have furnished to the Underwriters you such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters you may reasonably request.
(r) (An) The Merger Agreement effecting the First Merger and the Second Merger Shares shall have been duly authorized by all necessary corporate action approved for listing on the part NASDAQ, subject only to notice of the Company, each Subsidiary issuance and each Transaction Party, as applicable; (B) as evidence of the satisfactory distribution at or prior to such Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this AgreementDate.
(so) All outstanding optionsFINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 arrangements of the Delaware General Corporation Lawtransactions, contemplated hereby.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at and pay for the Closing Time or on each Date of Delivery, as applicable, Certificates pursuant to this Agreement are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters at On the Closing Time and on each Date of Delivery an opinion of MayerDate, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative you shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time opinions and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion negative assurance statement of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, outside counsel for the Company and Parent Guarantor, dated the Closing Time or such Date of Delivery, and addressed to the Representative and Underwriters, in form and substance reasonably satisfactory to you.
(b) On the RepresentativeClosing Date, you shall have received an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (US) LLP, regulatory counsel of the Company and the Parent Guarantor, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you.
(c) On the Closing Date, you shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, counsel for Wilmington Trust Company, individually and as the Loan Trustee, Subordination Agent and Trustee, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you.
(d) On the Closing Date, you shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, counsel for the Escrow Agent, dated the Closing Date, in form and substance reasonably satisfactory to you.
(e) On the Closing Date, you shall have received (i) an opinion of ▇▇▇▇▇▇▇, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel for the Liquidity Provider, and (ii) an opinion of in-house counsel for the Liquidity Provider, in each case, in form and substance reasonably satisfactory to you and dated the Closing Date.
(f) On the Closing Date, you shall have received an opinion of in-house counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to you.
(g) On the Closing Date, you shall have received an opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to you.
(h) On the Closing Date, you shall have received an opinion of ▇▇▇▇▇▇▇, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated as of the Closing Date and addressed to the Underwriters, with respect to the issuance and sale of the Certificates, the Registration Statement, the Time of Sale Prospectus, the Prospectus and other related matters as the Underwriters may reasonably require.
(i) No amendment or supplement Subsequent to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(j) Prior to the Closing Time execution and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution delivery of this Agreement and prior to the Closing Time or the relevant Date of Delivery Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any Material Adverse Change and intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company, the Parent Guarantor or any of their respective subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) no transaction which there shall not have occurred any change, or any development reasonably likely to involve a change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company, the Parent Guarantor and their respective subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiariesadverse and that makes it, in each case, which in the Representative’s sole your judgment, makes it impracticable or inadvisable to proceed with the completion of the public offering of the Shares as Certificates on the terms and in the manner contemplated by the Registration StatementStatement and the Time of Sale Prospectus.
(mj) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Underwriters shall have received lock-up agreements from each on the Closing Date (i) a certificate dated the Closing Date, addressed to the Underwriters and signed by an executive officer of the Company, in such officer, director, and 1% or greater stockholder ’s capacity as an officer of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by Company’s behalf, to the Company under the Securities Act so long as such registration statement complies with the restrictions thereon effect set forth in Section 4(q)(E3(i)(i) of this Agreement.
(p) The Company above and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
: (i1) the representations and warranties of the Company and the Transaction Parties contained in this Agreement are true and correct, as if made on and correct as of the date hereof, Closing Date and (2) the Company and each Aames Transaction Party has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to before the date hereof;
Closing Date and (ii) no stop order suspending a certificate dated the effectiveness Closing Date, and signed by an executive officer of the Registration Statement Parent Guarantor, in such officer’s capacity as an officer of the Parent Guarantor and on the Parent Guarantor’s behalf, to the effect set forth in Section 3(i)(i) above and to the effect that: (1) the representations and warranties of the Parent Guarantor contained in this Agreement are true and correct as of the Closing Date and (2) the Parent Guarantor has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or any post-effective amendment thereto satisfied hereunder on or before the S-4Closing Date. Each of the officers signing and delivering the respective certificates contemplated in clauses (i) and (ii) may rely upon the best of his or her knowledge as to proceedings threatened.
(k) You shall have received from KPMG LLP (i) a letter, dated no later than the date hereof and no order directed at any document addressed to the Underwriters, in form and substance satisfactory to you, 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 included or incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when in the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofStatement, the Registration Statement Time of Sale Prospectus and the Prospectus, and (ii) a letter, dated the S-4 Closing Date and any amendments or supplements addressed to any the Underwriters, which meets the above requirements, except that the specified date therein referring to certain procedures performed by KPMG LLP will not be a date more than three business days prior to the Closing Date for purposes of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations this subsection.
(l) Each of the Commission thereunderAppraisers shall have furnished to you a letter from such Appraiser, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material addressed to the Company and the Subsidiaries considered as one enterpriseParent Guarantor and dated the Closing Date, except transactions entered into in confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the ordinary course Company, the Parent Guarantor or any of businesstheir respective affiliates, (cii) does not have any obligationsubstantial interest, direct or contingentindirect, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of businessCompany, (d) any change in the capital stock or outstanding indebtedness of the Company Parent Guarantor or any Subsidiary that is material to the Company of their respective affiliates and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to informationis not connected with the Company, facts and events relating to SFPthe Parent Guarantor or any of their respective affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(qm) The Company At the Closing Date, each of the Operative Agreements (other than the Assignment and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Assumption Agreements and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(rFinancing Agreements) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized executed and delivered by all necessary corporate action on the part each of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreementparties thereto.
(sn) All outstanding optionsOn the Closing Date, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I the Class A Certificates and the Class B Certificates shall have been terminated or shall otherwise cease to be outstandingreceived the ratings indicated in the free writing prospectus identified as Item 1 in Schedule IV hereto from the nationally recognized statistical rating organizations named therein.
(to) None of SFP or any of its affiliates, The Underwriters shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under received on the Closing Date a certificate dated the Closing Date, signed by an executive officer of the Parent Guarantor and in accordance form and substance reasonably satisfactory to you, with Section 262 respect to the accuracy of certain statistical information included or incorporated by reference in the Delaware General Corporation LawTime of Sale Prospectus and the Prospectus.
(up) SFP On the Closing Date, the representations and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor warranties of the approval of the Mergers Depositary contained in this Agreement shall be true and (B) against any action, proposal (including any Superior Proposal, correct as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following if made on the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable Date (except to the Representativeextent that they relate solely to an earlier date, in which case they shall be true and correct as of such earlier date).
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective its obligations hereunder, hereunder and the satisfaction (or waiver by the Representative) of the following further conditions at the Closing Time or on each Date of Delivery, as applicableTime:
(a) The Company shall furnish to the Underwriters Representative at the Closing Time and on each Date opinions of Delivery an opinion of Mayer, Brown, Hunton & W▇▇▇▇▇▇▇ & Maw LLP, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Representative and dated the Closing Time and each Date of Delivery and substantially to the effect Time, as set forth on Exhibit B heretoSchedule VI.
(b) The Company shall furnish to the Underwriters Representative at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company’s Vice President, the Subsidiaries General Counsel and each of the other Aames Transaction PartiesCorporate Secretary, as to certain tax matters, which opinion shall be addressed to the UnderwritersRepresentative, dated the Closing Time and substantially otherwise in form and substance satisfactory to DLA Piper LLP (US), counsel for the effect Underwriters, stating as set forth on Exhibit C heretoSchedule VII.
(c) The Company shall furnish to the Underwriters Representative at the Closing Time and on each Date opinions of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & V▇▇▇▇▇▇ LLP, special Maryland counsel for SFPthe Company and the Subsidiaries, which opinion(s) shall be addressed to the Underwriters, Representative and dated the Closing Time and each Date of Delivery and substantially to the effect Time, as set forth on Exhibit F heretoSchedule VIII.
(fd) The Company shall furnish [Intentionally omitted.] Counsel may call attention to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given fact that, in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPdelivery of its opinion, counsel for Underwritershas not ordered or reviewed judgment, lien or any other searches of public or private records of the Company or its properties.
(ge) The Representative shall have received from Ernst & Young McGladrey, LLP letters dated, respectively, as of the date of this AgreementAgreement and, the Closing Time and each Date of DeliveryTime, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the SubsidiariesCompany, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hf) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPDLA Piper LLP (US), dated the Closing Time or such Date of DeliveryTime, addressed to the Representative and in form and substance satisfactory to the Representative.
(ig) No amendment or supplement to the Registration Statement Statement, the Disclosure Package or the Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jh) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 cease-and-desist order in connection with the public offering of the Shares or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Disclosure Package and the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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.
(ki) All filings with the Commission required by Rule 424 under of the Securities Act Regulations to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rulerule (without reliance on Rule 424(b)(8) of the Securities Act Regulations).
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ok) [Intentionally omitted.]
(l) The Representative shall have received lock-up agreements from each officer, director, and 1% at or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at before the Closing Time and on each Date of DeliveryTime, deliver to the Underwriters a certificate of its Chairman of the Board, Company’s Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicablein each case on behalf of the Company and not individually, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement that are not qualified by materiality or Material Adverse Effect are true and correctcorrect in all material respects and those representations and warranties of the Company in this Agreement that are qualified by materiality or Material Adverse Effect are true and correct in all respects, as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has complied with all the agreements in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofof such certificate;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or or, to such officer’s knowledge, threatened under the Securities Act;; and
(iii) when the Registration Statement Statement, at its initial effective date, the filing date of the Company’s Annual Report on Form 10-K for the year ended December 31, 2011, and S-4 became any subsequent effective date in connection with the Shares did not, the Disclosure Package, as of the Initial Sale Time and at all times subsequent thereto up to the date hereofof such certificate, the Registration Statement did not and does not, and the Prospectus, as of its date and the S-4 and any amendments or supplements to any date of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themsuch certificate, did not and do does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Operating Partnership in Section 3 hereof, in each case on the date hereof and at the Closing Time and on each Date of Delivery, as if made on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, to the performance in all material respects by the Company and the Transaction Parties Operating Partnership of their respective obligations hereunder, hereunder to be performed at or prior to the Closing Time and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion and letter of Mayer, Brown, ▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇▇ LLP, corporate counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to the effect Delivery, as set forth on Exhibit in Exhibits A and B hereto, respectively.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as set forth in Exhibit C hereto.
(c) On the case may bedate of this Agreement and at the Closing Time and each Date of Delivery (if applicable), the Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated the respective dates of delivery thereof and addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeUnderwriters, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Financial Statements and certain financial statements, including any pro forma financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Date of Delivery (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Date of Delivery, decreases in total assets or retained earnings or increases in borrowingsas the case may be.
(d) The Underwriters shall have received at the Closing Time and on each Date of Delivery (i) an opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, it shall be a further condition to counsel for the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company Underwriters, as to the significance thereof, unless the Representative deems such explanation unnecessarycertain federal income tax matters, and (Bii) such changesan opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, decreases or increases do notcounsel for the Underwriters, as to certain matters under the Investment Company Act, addressed to the Underwriters and dated the Closing Time and each Date of Delivery, as set forth in Exhibits D and E hereto, respectively. In addition, the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative Underwriters shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Time or such and each Date of Delivery, addressed to the Representative Underwriters and in form and substance satisfactory to the RepresentativeRepresentatives.
(ie) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Representatives shall have reasonably objected in writingwriting prior to the filing thereof.
(jf) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all reasonable requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingRepresentatives.
(kg) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Delivery, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementProspectus and the Disclosure Package.
(mi) The Shares shall have been approved for listing in on the NYSE, subject to notice of issuance.
(nj) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shallreceived, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman two of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableCompany’s executive officers, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or such Date of Delivery, as applicable, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements of their respective obligations hereunder and satisfied in all material respects all of the conditions on its their part to be performed or satisfied at or prior to the date hereofClosing Time or such Date of Delivery, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered its subsidiaries taken as one enterprise, except transactions entered into in the ordinary course of businessa whole, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprisea whole, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiarya whole, or (fE) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Properties which has been sustained or will have been sustained which, individually or in the aggregate, has which would reasonably be expected to have a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qk) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may have reasonably requestrequested prior to the date hereof.
(r) (Al) The Merger Agreement effecting the First Merger and the Second Merger Articles Supplementary shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary filed and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined accepted by the Company and reasonably acceptable to the RepresentativeSDAT.
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Conditions of the Underwriters’ Obligations. (a) The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Stockholders hereunder and under the Power of Attorney on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective obligations hereunder, hereunder and under the Power of Attorney and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.;
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, V▇▇▇▇▇ & Maw LLPE▇▇▇▇▇ L.L.P., special tax counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and in form and substance satisfactory to King & Spalding LLP, counsel for the Underwriters, in substantially to the effect form set forth on in Exhibit C attached hereto.;
(c) The Company Each Selling Stockholder shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Companysuch Selling Stockholder, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and in form and substance satisfactory to King & Spalding LLP, counsel for the Underwriters, in substantially to the effect form set forth on in Exhibit D attached hereto.
(d) The Company Representative shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. have received from BDO S▇▇▇▇▇▇, LLP, E▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal ▇▇ & ▇▇Y▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇G▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and BKD LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP independent registered public accounting firms, letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ King & ▇▇▇▇▇▇▇ Spalding LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(if) No Any amendment or supplement to the Registration Statement or Prospectus required to be filed with the Commission in accordance with Sections 4.1(c), (f), (i) or (j) of this Agreement shall have been filed to which the Underwriters shall have objected in writingso filed.
(jg) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; and (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingRepresentative.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each caseChange, which in the Representative’s ’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing inclusion in the NYSENasdaq National Market.
(nk) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative shall have received lock-up agreements from each officer, director, Selling Stockholder and 15% or greater stockholder of the Company and Aames Financial ICompany, in the form of Exhibit A B attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Board and Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to thereto and any of themIncorporated Documents, when such Incorporated Documents became effective or were filed with the Commission, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themthereto, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 Statement and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that except in each case as described in the certificate delivered by Prospectus.
(n) Each Selling Stockholder will, at the applicable officers Closing Time and on each Date of SFP may omit Delivery, deliver to the matters set forth in subclauses (ii) and (iv) aboveUnderwriters a certificate, may limit certification of to the matters set forth in subclause effect that:
(i) above to the representations, representations and warranties and agreements of SFP such Selling Stockholder set forth in this Agreement and may limit certification in the Power of Attorney are true and may limit certification correct as of such date; and
(ii) such Selling Stockholder has complied with all the matters set forth in subclause (iii) above agreements and satisfied all the conditions on its part to information, facts be performed or satisfied hereunder and events relating under the Power of Attorney at or prior to SFPthe date hereof.
(qo) The Company and each Transaction Partythe Selling Stockholders, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained hereinherein and in the Power of Attorney, and the performance by the Company and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. (a) The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective its obligations hereunder, hereunder and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLPWax, special tax counsel Counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and in form and substance reasonably satisfactory to Lord, Bissell & Brook LLP, counsel for the Underwriters, in substantially to the effect set forth on Exhibit C heretoform attached.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ & ▇▇▇▇▇ LLP, Maryland counsel for the CompanyCompany and the Subsidiaries, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and in form and substance reasonably satisfactory to Lord, Bissell & Brook LLP, counsel for the Underwriters, in substantially to the effect set forth on Exhibit D heretoform attached.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative Representatives shall have received from Ernst & Young KPMG LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating to the financial statementsstatements of the Company and the Subsidiaries, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes change in indebtednessthe capital stock, increase in long-term debt or any decreases in total assets stockholders' equity, operating income or retained earnings or increases in borrowingsnet income of the Company, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the RepresentativeRepresentatives, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative Representatives shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ Lord, Bissell & ▇▇▇▇▇▇▇ Brook LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(if) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writingwriting prior to its filing.
(jg) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any the Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) the Company shall have responded to all requests for additional information on the part comments of the Commission shall have been complied withto the Registration Statement to the reasonable satisfaction of the Representatives; and (iii) none the Registration Statement or any amendment thereto, in each case as of their respective effective dates, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Preliminary Prospectus, the Prospectus, and any amendment or supplement thereto, as of the Registration Statementapplicable filing dates and at the Closing Time and each Date of Delivery, the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Delivery, there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives' sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing inclusion in the NYSENasdaq National Market.
(nk) The NASD shall not have raised any confirmed in writing that it has decided to raise no objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsarrangements and shall not have raised any such objection after the date of such confirmation.
(ol) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial Iholder of a security convertible or exercisable into 1% or more of the Company's Common Stock, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Financial Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofof such certificate, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forthsuch certificate; and
(ivii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 Statement and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or increase in the outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qn) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Seabright Insurance Holdings Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on at each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time (if applicable) an opinion of Mayer, Brown, ▇▇▇▇ Miles & Maw LLPStockbridge P.C., counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the UnderwritersUnderwriters and dated the Closing Time or the applicable Option Closing Time, as the case may be, and in form and substance satisfactory to the Representatives.
(b) On the date of this Agreement and at the Closing Time and at each Option Closing Time (if applicable), the Representatives shall have received from BDO USA, LLP letters addressed to the Representatives and dated the respective dates of delivery thereof and in form and substance satisfactory to the Representatives, containing statements and information of the type customarily covered by an accountant’s “comfort letters” to underwriters delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin) issued in connection with underwritten public offerings including, without limitation, the audited and unaudited financial statements and the various other financial disclosures including any pro forma financial statements contained in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letters delivered at the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties(if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C heretocase may be.
(c) The Company Representatives shall furnish to the Underwriters have received at the Closing Time and on at each Date of Delivery Option Closing Time (if applicable) an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of addressed to the date of this Agreement, Representatives and dated the Closing Time and each Date of Deliveryor the applicable Option Closing Time, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the RepresentativeRepresentatives.
(id) The Registration Statement shall have become effective not later than 5:30 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representatives shall approve. If Rule 430A under the Securities Act is used, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act at or before 5:30 p.m., New York City time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act).
(e) Any Rule 462(b) Registration Statement required to be filed prior to the sale of the Shares under the Securities Act shall have been filed on the date hereof and shall have become automatically effective upon such filing.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatenedor, to the Company’s knowledge, threatened by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company shall not have become the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares.
(kh) All filings with the Commission required by Rule 424 under the Securities Act (including the information required by Rule 430A under the Securities Act) to have been filed by the Closing Time shall have been made in the manner and within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Option Closing Time, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which is not described in the Representative’s Registration Statement and the Disclosure Package, and which in the Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing in the NYSEon Nasdaq.
(nk) The NASD FINRA shall not have raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsor other arrangements of the transactions contemplated hereby.
(ol) The Representative On or prior to the date hereof, the Representatives shall have received lockLock-up agreements Agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached heretoLock-Up Persons, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallshall furnish to the Underwriters, at the Closing Time and on at each Date of DeliveryOption Closing Time (if applicable), deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or its Chief Financial Officer, General Partner dated the Closing Time or Managing Member, as applicablethe applicable Option Closing Time, to the effect that:
(i) the representations representations, warranties, and warranties covenants of the Company and the Transaction Parties in this Agreement are true and correct, with the same force and effect as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the such date hereofunder this Agreement;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;; and
(iii) when for the Registration Statement period from and S-4 became effective including the date of this Agreement through and at all times subsequent thereto up including such date, there has not occurred any Material Adverse Change.
(n) The Company shall furnish to the Underwriters, as of the date hereof, at the Registration Statement Closing Time and at each Option Closing Time (if applicable), a certificate of its Chief Financial Officer, dated the Closing Time or the applicable Option Closing Time, with respect to certain financial data contained in the Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed substance satisfactory to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPRepresentatives.
(qo) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters and counsel for the Underwriters such other documents information, documents, opinions and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters or their counsel may reasonably request, and all proceedings taken by the Company in connection with the issuance and sale of the Shares as contemplated herein and in connection with the other transactions contemplated by this Agreement shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(rp) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of Prior to the Closing Time, the First Merger Recapitalization Transactions, including the related amendments to the Company’s organizational documents, shall have closedbeen duly completed and effective, subject only to application of proceeds received by the Company from the sale of Shares. If any condition specified in this Section 6 is not satisfied when and there shall as required to be no pending satisfied, this Agreement may be terminated by the Representatives by notice from the Representatives to the Company at any time on or threatened actionprior to the Closing Time and, suit with respect to the Option Shares, at any time on or proceeding that could, in prior to the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the applicable Option Closing Time, there which termination shall be no pending or threatened action, suit or proceeding that could, in without liability on the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability part of any party hereto to fulfill its obligations under this Agreementany other party, except that Sections 5, 7, and 9 shall at all times be effective and shall survive such termination.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Telos Corp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on at each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder hereunder, on the date hereof and the Initial Sale Time, and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective its obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on at each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time, as applicable, (i) an opinion of Mayer, Brown, Hunton & ▇▇▇▇▇▇▇▇ & Maw LLP, counsel for the Company, and (ii) ▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Subsidiaries and Company, each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery the Option Closing Time, as applicable, and substantially in form and substance satisfactory to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the effect Underwriters, in the form set forth on in Exhibit B and Exhibit C hereto, respectively.
(b) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time, as applicable, an opinion of Mayer, Brown, Hunton & ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFPthe Company, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and at each Date of Delivery Option Closing Time, as applicable, and substantially to covering the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time tax matters and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for to the Underwriters, in the form set forth in Exhibit D hereto.
(gc) The Representative On the date of this Agreement and at the Closing Time and at each Option Closing Time (if applicable), the Representatives shall have received from Ernst McGladrey & Young ▇▇▇▇▇▇, LLP letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company included in the Registration Statement, the Prospectus and the SubsidiariesDisclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. ; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be.
(d) In the event that the letters referred to above set forth any changes in long-term indebtedness, decreases in total assets or retained earnings or increases in borrowingsborrowings that are not contemplated in the Registration Statement, the Prospectus or any document in the Disclosure Package, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems Representatives deem such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the RepresentativeRepresentatives, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative Representatives shall have received at the Closing Time and on at each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative Representatives and in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(if) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representatives shall approve.
(g) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jh) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ki) All filings with the Commission required by Rule 424 under of the Securities Act Regulations to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Option Closing Time (i) there shall not have been any Material Adverse Change Effect, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the SubsidiariesCompany, in each case, which which, in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in on the NYSE.
(nl) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(om) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, Lock-Up Party in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pn) The Company and each Transaction Party shallwill, at the Closing Time and on at each Date of DeliveryOption Closing Time, as applicable, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, Officer in his capacity as applicablean officer of the Company and without personal liability, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofInitial Sale Time, the Closing Time and, if applicable, any Option Closing Time, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of Securities Act Regulations or the Commission thereunderExchange Act Regulations, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of Securities Act Regulations or the Commission thereunderExchange Act Regulations, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and the Registration Statement, the S-4Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time, the Initial Sale Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Registration Statement, the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse ChangeEffect, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterpriseCompany, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterpriseCompany, incurred by the Company or the SubsidiariesCompany, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered other than as one enterprisecontemplated therein, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any SubsidiaryCompany, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qo) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as applicable, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Madison Square Capital, Inc.)
Conditions of the Underwriters’ Obligations. (a) The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(ai) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇▇ LLP, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance satisfactory to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & Maw ▇▇▇▇ LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C heretoreasonably requested by the Representative.
(cii) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, Maryland Bermuda counsel for the CompanyCompany and the Subsidiaries, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance satisfactory to Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, to the effect set forth on Exhibit D heretoreasonably requested by the Representative.
(diii) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ P.C., ▇▇.Colorado counsel for the Company and the Subsidiaries, Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance satisfactory to Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, to the effect set forth on Exhibit E heretoreasonably requested by the Representative.
(eiv) SFP The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP▇▇, special Indiana counsel for SFPthe Company and the Subsidiaries, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance satisfactory to Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, to the effect set forth on Exhibit F heretoreasonably requested by the Representative.
(fv) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them an opinion of A & L Goodbody Solicitors, Irish counsel for the Company and the Subsidiaries, addressed to rely upon the opinions given in connection with Underwriters and dated the Merger Agreement, which opinions Closing Time and reliance letters shall be each Date of Delivery and in form and substance satisfactory to Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, to the effect reasonably requested by the Representative.
(gvi) The Representative Company shall have received from Ernst & Young LLP letters datedfurnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇'▇, respectivelyUnited Kingdom counsel for the Company and the Subsidiaries, as of addressed to the date of this Agreement, Underwriters and dated the Closing Time and each Date of Delivery and in form and substance satisfactory to Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, to the effect reasonably requested by the Representative.
(vii) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of internal counsel for the Company which is at least an associate general counsel, addressed to the Underwriters and dated the Closing Time and each Date of Delivery and in form and substance satisfactory to Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, to the effect reasonably requested by the Representative.
(viii) On the date of this Agreement and at each Date of Delivery, as the case may be, Representative shall have received from PricewaterhouseCoopers LLP letters dated the respective Dates of Delivery thereof and addressed to the Representative, in form and substance satisfactory to the Representative, relating containing statements and information of the type specified in AU Section 634 "Letters for Underwriters and Certain other Requesting Parties" issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma and certain financial statements, information of the Company and the SubsidiariesSubsidiaries included or incorporated by reference in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hix) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Sidley ▇▇▇▇▇▇ & ▇▇▇▇▇ & ▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ix) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Representative shall have objected in writing.
(jxi) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the CommissionCommission or any other applicable regulatory authority, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission or any other applicable regulatory authority shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kxii) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lxiii) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s 's sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mxiv) The Application has been made for the listing of the Shares shall have been approved for listing in the NYSEon NASDAQ.
(nxv) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pxvi) The Company and each Transaction Party shallshall have furnished to the Representative, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Interim Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Financial Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(iA) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofhereof and such Date of Delivery, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofhereof and such Date of Delivery;
(iiB) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“"Incorporated Document”") has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities ActAct or applicable blue sky laws of any jurisdiction;
(iiiC) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofStatement, the Registration Statement Prospectus and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4Disclosure Package, and any amendments or supplements to any of themthereto, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(ivD) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qb) On or prior to the Closing Time related to the Initial Shares the Company shall have issued and sold at least 11,423,340 additional shares of its common stock pursuant to that certain underwriting agreement between the Company and the Underwriters.
(c) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters Representative may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Quanta Capital Holdings LTD)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Operating Partnership in Section 3 hereof, in each case on the date hereof and at the Closing Time and on each Date of Delivery, as if made on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, to the performance in all material respects by the Company and the Transaction Parties Operating Partnership of their respective obligations hereunder, hereunder to be performed at or prior to the Closing Time and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion and letter of Mayer, Brown, ▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇▇ LLP, corporate counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery and substantially to the effect Delivery, as set forth on Exhibit in Exhibits A and B hereto, respectively.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as set forth in Exhibit C hereto.
(c) On the case may bedate of this Agreement and at the Closing Time and each Date of Delivery (if applicable), the Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated the respective dates of delivery thereof and addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeUnderwriters, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the consolidated financial statementsstatements of the Company incorporated by reference in each of the Registration Statement, including any pro forma the Prospectus and the Disclosure Package and certain financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Date of Delivery (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Date of Delivery, decreases in total assets or retained earnings or increases in borrowingsas the case may be.
(d) The Underwriters shall have received at the Closing Time and on each Date of Delivery (i) an opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, it shall be a further condition to counsel for the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company Underwriters, as to the significance thereof, unless the Representative deems such explanation unnecessarycertain federal income tax matters, and (Bii) such changesan opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, decreases or increases do notcounsel for the Underwriters, as to certain matters under the Investment Company Act, addressed to the Representatives and dated the Closing Time and each Date of Delivery, as set forth in Exhibits D and E hereto, respectively. In addition, the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative Underwriters shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Time or such and each Date of Delivery, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(ie) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Representatives shall have reasonably objected in writingwriting prior to the filing thereof.
(jf) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all reasonable requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingRepresentatives.
(kg) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Delivery, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementProspectus and the Disclosure Package.
(mi) The Shares Company shall have been approved for listing in submitted an application to list the NYSEShares on the NYSE and shall have filed a registration statement on Form 8-A to register the Preferred Stock under Section 12(b) of the Exchange Act.
(nj) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shallreceived, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman two of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableCompany’s executive officers, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or such Date of Delivery, as applicable, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements of their respective obligations hereunder and satisfied in all material respects all of the conditions on its their part to be performed or satisfied at or prior to the date hereofClosing Time or such Date of Delivery, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered its subsidiaries taken as one enterprise, except transactions entered into in the ordinary course of businessa whole, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprisea whole, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiarya whole, or (fE) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Properties which has been sustained or will have been sustained which, individually or in the aggregate, has which would reasonably be expected to have a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and ; and
(iv) above, may limit certification the Commission has not notified the Company of the matters set forth in subclause (i) above any objection to the representations, warranties and agreements use of SFP an “automatic shelf registration statement” (as defined in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPRule 405).
(qk) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may have reasonably requestrequested prior to the date hereof.
(r) (Al) The Merger Agreement effecting the First Merger and the Second Merger Articles Supplementary shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary filed and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined accepted by the Company and reasonably acceptable to the RepresentativeSDAT.
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder each Selling Stockholder on the date hereof and at the Closing Time of Purchase and on each Date Additional Time of DeliveryPurchase, as applicableif any, the performance in all material respects by the Company and the Transaction Parties each Selling Stockholder of each of their respective obligations hereunder, hereunder and the satisfaction of to the following further additional conditions at the Closing Time or on each Date of Delivery, as applicableprecedent:
(a) The Company shall furnish to the Underwriters at the Closing Time of Purchase and on each Date Additional Time of Delivery Purchase, if any, an opinion and negative assurance statement of Mayer, Brown, Winston & ▇▇▇▇▇▇ & Maw LLP, special counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, and dated the Closing Time of Purchase or the Additional Time of Purchase, as the case may be, in form and each Date of Delivery and substantially substance satisfactory to the effect Underwriters, as to the matters set forth on in Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time of Purchase and on each Date Additional Time of Delivery Purchase, if any, an opinion of Mayer, Brown, ▇▇▇▇ & Maw McGuireWoods LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, and dated the Closing Time of Purchase or the Additional Time of Purchase, as the case may be, in form and substantially substance satisfactory to the effect Underwriters, as to the matters set forth on in Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time of Purchase and on each Date Additional Time of Delivery Purchase, if any, an opinion of ▇▇▇▇▇▇, special counsel for the Company with respect to its operations in Malaysia, addressed to the Underwriters, and dated the Time of Purchase or the Additional Time of Purchase, as the case may be, in form and substance satisfactory to the Underwriters, as to the matters set forth in Exhibit D hereto.
(d) The Selling Stockholders shall furnish to the Underwriters at the Time of Purchase, an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPPC, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of to the date of this Agreement, the Closing Time and each Date of Delivery, as the case may beSelling Stockholders, addressed to the RepresentativeUnderwriters, and dated the Time of Purchase, in form and substance satisfactory to the RepresentativeUnderwriters, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, matters set forth in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration StatementExhibit E hereto.
(he) The Representative Underwriters shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇from ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPLLP letters dated, respectively, the date of this Agreement and the Time of Purchase and each Additional Time of Purchase, if any, and addressed to the Underwriters in the forms satisfactory to the Underwriters, which letters shall cover the various financial disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus.
(f) The Underwriters shall have received at the Time of Purchase and each Additional Time of Purchase, if any, the favorable opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, dated the Closing Time of Purchase or such Date the Additional Time of DeliveryPurchase, addressed to as the Representative and case may be, in form and substance reasonably satisfactory to the RepresentativeUnderwriters.
(ig) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Underwriters Representative shall have objected in writing.
(jh) The Registration Statement shall be effective under the Act and any registration statement required to be filed, prior to the sale of the Shares, under the Act pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act. The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., Boston time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Act).
(i) Prior to and at the Closing Time of Purchase and each Date Additional Time of Delivery Purchase, if any, (i) no stop order suspending with respect to the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been issued under the Act or proceedings initiated under Section 8(d) or threatened, by the Commission, and no suspension 8(e) of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurredAct; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement and all amendments thereto shall not contain an untrue statement of a material fact or 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, therein not misleading.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when none of the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act Preliminary Prospectuses or the Exchange Act and the applicable rules and regulations of the Commission thereunderProspectus nor any amendment or supplement thereto, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not shall include any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent neither the Disclosure Package, nor any amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the respective dates as of which information is given statements therein, in the Registration Statementlight of the circumstances under which they are made, S-4 not misleading; and Prospectus(v) none of the Permitted Free Writing Prospectuses, there has not been (a) any Material Adverse Changeif any, (b) any transaction that is shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the Company and the Subsidiaries considered as one enterprisestatements therein, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness light of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprisecircumstances under which they are made, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPmisleading.
(qj) The Company will, at the Time of Purchase and each Additional Time of Purchase, if any, deliver to the Underwriters a certificate of its Chief Executive Officer and its Chief Financial Officer, dated the Time of Purchase, in a form satisfactory to the Representative.
(k) The Selling Stockholders will, at the Time of Purchase, deliver to you a certificate signed by a Representative of the Selling Stockholders, dated the Time of Purchase in a form satisfactory to the Representative.
(l) The Underwriters shall have received each of the signed Lock-Up Agreements referred to in Section 3(jj) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Time of Purchase and each Additional Time of Purchase, if any.
(m) The Company and each Transaction Party, as applicable, Selling Stockholder shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the ProspectusStatement, the representationsDisclosure Package, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of Prospectus or any conditions contained herein or therein, Permitted Free Writing Prospectus as of the Closing Time or any Date of DeliveryPurchase and each Additional Time of Purchase, if any, as the Underwriters Representative may reasonably request.
(r) (An) The Merger Agreement effecting the First Merger and the Second Merger Shares shall have been duly authorized by all necessary corporate action approved for listing on NASDAQ, subject only to notice of issuance at or prior to the part Time of Purchase or the Company, each Subsidiary and each Transaction PartyAdditional Time of Purchase, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreementcase may be.
(so) All outstanding optionsFINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, warrants or other securities exercisable or exchangeable for or convertible into shares arrangements of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstandingthe transactions, contemplated hereby.
(tp) None of SFP or any of its affiliates, Each Selling Stockholder shall have exercised delivered to the Underwriters a duly executed Power of Attorney and perfected a duly executed Custody Agreement, in each case in form and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable substance satisfactory to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time (i) an opinion of Mayer, Brown, N▇▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & S▇▇▇▇▇▇▇▇▇▇ LLP, counsel for Underwriters.the Company and the Subsidiaries, addressed to the Underwriters and dated the Closing Time and each Option Closing Time, as applicable, and (ii) an opinion of H▇▇▇▇▇▇ H▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ & Manner, P.C., counsel for the Company and the Subsidiaries, addressed to the Underwriters and dated the Closing Time and each Option Closing Time, as applicable, each in form and substance satisfactory to Pillsbury W▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters to the effect set forth substantially in Exhibit B.
(gb) The On the date of this Agreement and at the Closing Time and each Option Closing Time (if applicable), the Representative shall have received from G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Ernst & Young LLP letters datedand S▇▇▇▇▇▇▇ K▇▇▇ & Co., LLP, respectively, as letters dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hc) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of Pillsbury W▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(id) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve.
(e) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jf) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or any prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mi) The Shares shall have been approved for listing in on the NYSENasdaq Global Market, subject to official notice of issuance.
(nj) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ok) The Representative shall have received lockLock-up agreements from each officer, director, and 1% or greater stockholder Up Letter Agreements contemplated by Section 4 of the Company and Aames Financial I, in the form of Exhibit A attached hereto, this Agreement and such letter agreements Lock-Up Letter Agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pl) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of the Company signed on its Chairman of the Board, behalf by its Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of themthereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forthforth (provided, however, that the Company shall make no warranty or representation with respect to any statement contained in or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters through the Representative to the Company expressly for use therein (that information being limited to that described in the last sentence of the first paragraph of Section 9(b) hereof)); and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qm) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Goldleaf Financial Solutions Inc.)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at and pay for the Closing Time or on each Date of Delivery, as applicable, Certificates pursuant to this Agreement are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters at On the Closing Time and on each Date of Delivery an opinion of MayerDate, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative you shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time opinions and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion negative assurance statement of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, outside counsel for the Company and Parent Guarantor, dated the Closing Time or such Date of Delivery, and addressed to the Representative and Underwriters, in form and substance reasonably satisfactory to you.
(b) On the RepresentativeClosing Date, you shall have received an opinion of Squire, ▇▇▇▇▇▇▇ (US) LLP, regulatory counsel of the Company and the Parent Guarantor, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you.
(c) On the Closing Date, you shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for Wilmington Trust Company, individually and as the Loan Trustee, Subordination Agent and Trustee, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you.
(d) On the Closing Date, you shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Escrow Agent, dated the Closing Date, in form and substance reasonably satisfactory to you.
(e) On the Closing Date, you shall have received (i) an opinion of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special New York counsel for the Liquidity Provider, and (ii) an opinion of in-house counsel for the Liquidity Provider, in each case, in form and substance reasonably satisfactory to you and dated the Closing Date.
(f) On the Closing Date, you shall have received an opinion of in-house counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to you.
(g) On the Closing Date, you shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇ LLP, special New York counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to you.
(h) On the Closing Date, you shall have received an opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated as of the Closing Date and addressed to the Underwriters, with respect to the issuance and sale of the Certificates, the Registration Statement, the Time of Sale Prospectus, the Prospectus and other related matters as the Underwriters may reasonably require.
(i) No amendment or supplement Subsequent to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(j) Prior to the Closing Time execution and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution delivery of this Agreement and prior to the Closing Time or the relevant Date of Delivery Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any Material Adverse Change and intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company, the Parent Guarantor or any of their respective subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) no transaction which there shall not have occurred any change, or any development reasonably likely to involve a change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company, the Parent Guarantor and their respective subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiariesadverse and that makes it, in each case, which in the Representative’s sole your judgment, makes it impracticable or inadvisable to proceed with the completion of the public offering of the Shares as Certificates on the terms and in the manner contemplated by the Registration StatementStatement and the Time of Sale Prospectus.
(mj) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Underwriters shall have received lock-up agreements from each on the Closing Date (i) a certificate dated the Closing Date, addressed to the Underwriters and signed by an executive officer of the Company, in such officer, director, and 1% or greater stockholder ’s capacity as an officer of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by Company’s behalf, to the Company under the Securities Act so long as such registration statement complies with the restrictions thereon effect set forth in Section 4(q)(E3(i)(i) of this Agreement.
(p) The Company above and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
: (i1) the representations and warranties of the Company and the Transaction Parties contained in this Agreement are true and correct, as if made on and correct as of the date hereof, Closing Date and (2) the Company and each Aames Transaction Party has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to before the date hereof;
Closing Date and (ii) no stop order suspending a certificate dated the effectiveness Closing Date, and signed by an executive officer of the Registration Statement Parent Guarantor, in such officer’s capacity as an officer of the Parent Guarantor and on the Parent Guarantor’s behalf, to the effect set forth in Section 3(i)(i) above and to the effect that: (1) the representations and warranties of the Parent Guarantor contained in this Agreement are true and correct as of the Closing Date and (2) the Parent Guarantor has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or any post-effective amendment thereto satisfied hereunder on or before the S-4Closing Date. Each of the officers signing and delivering the respective certificates contemplated in clauses (i) and (ii) may rely upon the best of his or her knowledge as to proceedings threatened.
(k) You shall have received from KPMG LLP (i) a letter, dated no later than the date hereof and no order directed at any document addressed to the Underwriters, in form and substance satisfactory to you, 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 included or incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when in the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofStatement, the Registration Statement Time of Sale Prospectus and the Prospectus, and (ii) a letter, dated the S-4 Closing Date and any amendments or supplements addressed to any the Underwriters, which meets the above requirements, except that the specified date therein referring to certain procedures performed by KPMG LLP will not be a date more than three business days prior to the Closing Date for purposes of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations this subsection.
(l) Each of the Commission thereunderAppraisers shall have furnished to you a letter from such Appraiser, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material addressed to the Company and the Subsidiaries considered as one enterpriseParent Guarantor and dated the Closing Date, except transactions entered into in confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the ordinary course Company, the Parent Guarantor or any of businesstheir respective affiliates, (cii) does not have any obligationsubstantial interest, direct or contingentindirect, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of businessCompany, (d) any change in the capital stock or outstanding indebtedness of the Company Parent Guarantor or any Subsidiary that is material to the Company of their respective affiliates and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to informationis not connected with the Company, facts and events relating to SFPthe Parent Guarantor or any of their respective affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(qm) The Company At the Closing Date, each of the Operative Agreements (other than the Assignment and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Assumption Agreements and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(rFinancing Agreements) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized executed and delivered by all necessary corporate action on the part each of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreementparties thereto.
(sn) All outstanding optionsOn the Closing Date, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I the Class A Certificates and the Class B Certificates shall have been terminated or shall otherwise cease to be outstandingreceived the ratings indicated in the free writing prospectus identified as Item 2 in Schedule IV hereto from the nationally recognized statistical rating organizations named therein.
(to) None of SFP or any of its affiliates, The Underwriters shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under received on the Closing Date a certificate dated the Closing Date, signed by an executive officer of the Parent Guarantor and in accordance form and substance reasonably satisfactory to you, with Section 262 respect to the accuracy of certain statistical information included or incorporated by reference in the Delaware General Corporation LawTime of Sale Prospectus and the Prospectus.
(up) SFP On the Closing Date, the representations and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor warranties of the approval of the Mergers Depositary contained in this Agreement shall be true and (B) against any action, proposal (including any Superior Proposal, correct as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following if made on the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable Date (except to the Representativeextent that they relate solely to an earlier date, in which case they shall be true and correct as of such earlier date).
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Initial Closing Time or on each Date of Deliveryat the Option Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Initial Closing Time and on each Date of Deliveryat the Option Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective its obligations hereunder, hereunder and the satisfaction (or waiver by the Representatives) of the following further conditions at the Initial Closing Time or on each Date of Deliveryat the Option Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters Representatives at the Initial Closing Time and on each Date at the Option Closing Time opinions of Delivery an opinion of Mayer, Brown, Hunton & ▇▇▇▇▇▇▇▇ & Maw LLP, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Initial Closing Time and each Date of Delivery and substantially to the effect Option Closing Time, as set forth on Exhibit B heretoSchedule VI.
(b) The Company shall furnish to the Underwriters Representatives at the Initial Closing Time and on each Date of Delivery at the Option Closing Time an opinion of Mayerthe Company’s Vice President, BrownGeneral Counsel and Corporate Secretary, ▇▇▇▇ & Maw LLPaddressed to the Representatives, special tax dated the Initial Closing Time and Option Closing Time and otherwise in form and substance satisfactory to DLA Piper LLP (US), counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect stating as set forth on Exhibit C heretoSchedule VII.
(c) [Intentionally omitted.]
(d) The Company Representatives shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇have received from McGladrey & ▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Initial Closing Time and each Date of Deliverythe Option Closing Time, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating to the financial statements, including any pro forma financial statements, of the Company and the SubsidiariesCompany, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative Representatives shall have received at the Initial Closing Time and on each Date of Delivery the Option Closing Time the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPDLA Piper LLP (US), dated the Initial Closing Time or such Date of Deliveryand Option Closing Time, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(if) No amendment or supplement to the Registration Statement Statement, the Disclosure Package or the Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jg) Prior to the Initial Closing Time and each Date of Delivery the Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 cease-and-desist order in connection with the public offering of the Shares or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Disclosure Package and the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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.
(kh) All filings with the Commission required by Rule 424 under of the Securities Act Regulations to have been filed by the Initial Closing Time shall have been made within the applicable time period prescribed for such filing by such Rulerule (without reliance on Rule 424(b)(8) of the Securities Act Regulations).
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(oj) [Intentionally omitted.]
(k) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% at or greater stockholder of before the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Initial Closing Time and on each Date of Deliveryat the Option Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Company’s Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicablein each case on behalf of the Company and not individually, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement that are not qualified by materiality or Material Adverse Effect are true and correctcorrect in all material respects and those representations and warranties of the Company in this Agreement that are qualified by materiality or Material Adverse Effect are true and correct in all respects, as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has complied with all the agreements in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofof such certificate;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or or, to such officer’s knowledge, threatened under the Securities Act;; and
(iii) when the Registration Statement Statement, at its initial effective date, the filing date of the Company’s Annual Report on Form 10-K for the year ended December 31, 2011, and S-4 became any subsequent effective date in connection with the Shares did not, the Disclosure Package, as of the Initial Sale Time and at all times subsequent thereto up to the date hereofof such certificate, the Registration Statement did not and does not, and the Prospectus, as of its date and the S-4 and any amendments or supplements to any date of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themsuch certificate, did not and do does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each the Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and on the Transaction Parties hereunder part of the Selling Stockholders in all material respects on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance by the Company and of the Selling Stockholders of their obligations hereunder in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each the Date of Delivery, as applicable:
(a) The Company Representatives shall furnish to the Underwriters at have received, dated as of the Closing Time and on each Date of Delivery Delivery, an opinion of Mayer, Brown, O’Melveny & ▇▇▇▇▇ & Maw LLP, counsel for LLP (which may rely upon the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇ ▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP to the extent any opinion thereunder pertains to Maryland law), as special corporate counsel for the Company, addressed to and in form and substance satisfactory to the Underwriters covering the matters described in Exhibit A hereto.
(b) The Representatives shall have received, dated as of the Closing Time and on each Date of Delivery, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll LLP, as special Maryland counsel for the Company, addressed to and in form and substance satisfactory to the Underwriters covering the matters described in Exhibit B hereto.
(c) The Underwriters shall have received at the Closing Time the favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as counsel for the Underwriters, dated the Closing Time, in form and substance satisfactory to the Representatives.
(gd) The Representative Representatives shall have received from Ernst Deloitte & Young LLP Touche LLP, letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, relating to the financial statements, including any pro forma financial statements, of the Company and the SubsidiariesCompany, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(jf) Notification from the Company that the Registration Statement has become effective shall have been received by the Representatives and the Prospectus shall have been timely filed with the Commission in accordance with Section 4.1(b) of this Agreement.
(g) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurredoccurred and, in any such instance, not been waived by the Commission; and (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, Statement and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there no material and adverse change in the assets, business, operations, earnings, properties or condition (financial or otherwise) of the Company shall occur or become known (whether or not have been any Material Adverse Change arising in the ordinary course of business), and (ii) no transaction which is material and unfavorable adverse to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementCompany.
(mi) The Shares shall have been approved for listing inclusion in the NYSENew York Stock Exchange.
(nj) If the issuance and sale of the Initial Shares and/or Option Shares to the Underwriters will result in the Underwriters individually or in the aggregate exceeding the Aggregate Stock Ownership Limit (as defined in the Company Charter Documents) with respect to the Company’s capital stock, then, on or prior to the Closing Time or the relevant Date of Delivery, the Underwriters shall have received from the Company’s Board of Directors a waiver or exemption from the Aggregate Stock Ownership Limit with respect to the issuance and sale of such Shares, in form and substance reasonably satisfactory to the Underwriters.
(k) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsarrangements between the date of this Agreement and the Closing Time or the Date of Delivery, as applicable.
(ol) The Representative Representatives shall have received lock-up agreements from Seneca and each officer, director, of the officers and 1% or greater stockholder directors of the Company and Aames Financial I, (a “Lock-Up Agreement”) substantially in the form of Exhibit A C attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, President and Chief Executive Officer, President, Chief Operating Officer or and its Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) , to each of such officer’s knowledge, the representations and warranties of the Company and the Transaction Parties set forth in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied correct in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to set forth in paragraphs (g), (h) and (i) have been satisfied, in each case as of such date.
(n) The Underwriters shall have received the date hereofmanager certificate from Seneca (the “Manager Certificate”), substantially in the form attached hereto as Exhibit D;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qo) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, Prospectus and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, Delivery as the Underwriters may reasonably request.
(rp) (A) The Merger Agreement effecting Each Selling Stockholder shall have furnished to the First Merger Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Second Merger shall have been duly authorized Prospectus furnished by all necessary corporate action or on behalf of such Selling Stockholder, and the part performance by the Selling Stockholder of the Companyits covenants contained herein, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, Time as the First Merger Underwriters may reasonably request.
(q) The Company shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill performed its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease Agreement as are to be outstanding.
(t) None of SFP performed by the terms hereof and thereof at or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following before the Closing Time and pursuant to such other terms as are determined by or the Company and reasonably acceptable to the Representativerelevant Date of Delivery.
Appears in 1 contract
Sources: Underwriting Agreement (Luminent Mortgage Capital Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares Units at the Closing Time or on at each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder hereunder, on the date hereof and the Initial Sale Time, and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective its obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on at each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time, as applicable, (i) an opinion of Mayer, Brown, Hunton & ▇▇▇▇▇▇▇▇ & Maw LLP, counsel for the Company, and (ii) ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Subsidiaries and Company, each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery the Option Closing Time, as applicable, and substantially in form and substance satisfactory to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the effect Underwriters, in the form set forth on in Exhibit B and Exhibit C hereto, respectively.
(b) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time, as applicable, an opinion of Mayer, Brown, Hunton & ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFPthe Company, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and at each Date of Delivery Option Closing Time, as applicable, and substantially to covering the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time tax matters and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for to the Underwriters, in the form set forth in Exhibit D hereto.
(gc) The Representative On the date of this Agreement and at the Closing Time and at each Option Closing Time (if applicable), the Representatives shall have received from Ernst McGladrey & Young ▇▇▇▇▇▇, LLP letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company included in the Registration Statement, the Prospectus and the SubsidiariesDisclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. ; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be.
(d) In the event that the letters referred to above set forth any changes in long-term indebtedness, decreases in total assets or retained earnings or increases in borrowingsborrowings that are not contemplated in the Registration Statement, the Prospectus or any document in the Disclosure Package, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems Representatives deem such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the RepresentativeRepresentatives, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares Units as contemplated by the Registration Statement.
(he) The Representative Representatives shall have received at the Closing Time and on at each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative Representatives and in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(if) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representatives shall approve.
(g) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jh) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares Units for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ki) All filings with the Commission required by Rule 424 under of the Securities Act Regulations to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Option Closing Time (i) there shall not have been any Material Adverse Change Effect, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the SubsidiariesCompany, in each case, which which, in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares Units as contemplated by the Registration Statement.
(mk) The Shares Units, the Common Stock and the Warrants shall have been approved for listing in on the NYSE.
(nl) The NASD Company shall have delivered to the Representatives an executed copy of the Warrant Agreement on the date the Registration Statement becomes effective.
(m) The FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(on) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, Lock-Up Party in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(po) The Company and each Transaction Party shallwill, at the Closing Time and on at each Date of DeliveryOption Closing Time, as applicable, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, Officer in his capacity as applicablean officer of the Company and without personal liability, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofInitial Sale Time, the Closing Time and, if applicable, any Option Closing Time, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of Securities Act Regulations or the Commission thereunderExchange Act Regulations, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of Securities Act Regulations or the Commission thereunderExchange Act Regulations, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and the Registration Statement, the S-4Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time, the Initial Sale Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Registration Statement, the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse ChangeEffect, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterpriseCompany, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterpriseCompany, incurred by the Company or the SubsidiariesCompany, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered other than as one enterprisecontemplated therein, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any SubsidiaryCompany, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qp) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as applicable, as the Underwriters may reasonably request.
(rq) (A) The Merger Agreement effecting the First Merger and the Second Merger No Underwriter shall have been duly authorized by all necessary corporate action discovered and disclosed to the Company on or prior to the part of the Company, each Subsidiary and each Transaction PartyClosing Time or any Option Closing Time, as applicable; (B) as of , that the Closing TimeRegistration Statement, the First Merger shall have closedProspectus or the Disclosure Package, and there shall be no pending or threatened actionany amendment or supplement thereto, suit or proceeding that couldcontains an untrue statement of a fact which, in the reasonable discretion opinion of counsel for the RepresentativeUnderwriters, result in the unwinding of either the First Merger is material or the Second Merger or omits to state a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that couldfact which, in the reasonable discretion opinion of such counsel, is material and is required to be stated therein or is necessary to make the Representativestatements therein not misleading.
(r) All corporate proceedings and other legal matters incident to the authorization, prevent form and validity of this Agreement, the consummation of Units, the Common Stock, the Warrants, the Registration Statement, the Prospectus and the Disclosure Package, and all other legal matters relating to this Agreement and the transactions contemplated by this Agreement or otherwise adversely affect hereby shall be reasonably satisfactory in all material respects to counsel for the ability of any party hereto Underwriters, and the Company shall have furnished to fulfill its obligations under this Agreementsuch counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I No action shall have been terminated taken and no law, statute, rule, regulation or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, order shall have exercised and perfected and not otherwise effectively withdrawn been enacted, adopted or otherwise lost appraisal rights under and in accordance with Section 262 issued by any governmental agency or body that would prevent the issuance or sale of the Delaware General Corporation Law.
Units (u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all including the shares of Aames Financial I capital stock beneficially owned by them (A) in favor Common Stock and the Warrants included as part of the approval Units, and the shares of Common Stock underlying the Warrants included in the Units) and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued that would prevent the issuance or sale of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this AgreementUnits.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Madison Square Capital, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Operating Partnership on the date hereof and hereof, at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, (ii) the accuracy of the statements of the officers of the Company, for itself and as the general partner of the Operating Partnership, made in any certificate pursuant to the provisions hereof as of the date of such certificate, (iii) the performance in all material respects by the Company and the Transaction Parties Operating Partnership of all their respective covenants and other obligations hereunder, hereunder and (iv) the satisfaction of the following further other conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish or cause to be furnished to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Option Closing Time (i) the opinion and each Date disclosure letter of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, S▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters datedthe Company, respectively, as of each addressed to the date of this Agreement, Representatives and dated the Closing Time and each Date Option Closing Time, in substantially the form set forth on Exhibit C-1 and Exhibit C-2 hereto and (ii) the opinion of DeliveryV▇▇▇▇▇▇ LLP, as Maryland counsel for the case may beCompany, addressed to the RepresentativeRepresentatives and dated the Closing Time and each Option Closing Time, in substantially the form and substance satisfactory set forth on Exhibit D. In addition, the Company shall furnish or caused to be furnished to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, tax counsel for the Company, regarding certain U.S. federal income tax matters, addressed to the Representatives and dated the Closing Time and each Option Closing Time, in substantially the form set forth on Exhibit C-3 hereto.
(b) The Selling Stockholders shall furnish to the Underwriters at the Closing Time an opinion of Sidley Austin LLP, or such Date other counsel acting on behalf of Deliverythe Selling Stockholders reasonably acceptable to the Representatives, addressed to the Representative Representatives and dated the Closing Time, in substantially the form attached hereto as Exhibit E.
(c) The Underwriters shall have received at the Closing Time an opinion and disclosure letter of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel for the Underwriters, each addressed to the Representatives and dated the Closing Time, in form and substance reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from each of BDO LLP, L▇▇▇▇▇, G▇▇▇▇▇▇ & Co., P.C. and B▇▇▇▇▇ LLP “comfort” letters dated as of the date hereof, and from BDO LLP, a “comfort” letter dated as of the Closing Time and each Option Closing Time, in each case addressed to the Representatives and in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(i) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(je) Prior to the Closing Time and each Date of Delivery or any Option Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, issued and no proceedings for such purpose shall have been initiated or threatenedor, to the Company’s knowledge, threatened by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kf) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lg) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) any Option Closing Time, there shall not have been occurred any event, circumstance or change constituting a Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementEffect.
(mh) The Shares shall have been approved for listing in on the NYSE, subject to official notice of issuance.
(ni) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(oj) The Representative Representatives shall have received lock-up agreements from each officer, director, director and 1% or greater stockholder of the Company and Aames Financial I, Selling Stockholder in the form of attached hereto as Exhibit A attached heretoB, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pk) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver shall have delivered to the Underwriters Representatives a certificate of certificate, executed by its Co-Chairman of the Board, Board of Directors and Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or its Chief Financial Officer, General Partner or Managing Member, as applicableon behalf of the Company and the Operating Partnership, to the effect that:
that (i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or such Option Closing Time, as applicable, (except to the extent that such representations and warranties speak as of another date, in which case such representations and warranties shall be true and correct as of such other date), (ii) the conditions set forth in subsections (e) and (g) of this Section 8 have been satisfied and are true and correct as of the Closing Time or the applicable Option Closing Time, and (iii) each of the Company and each Aames Transaction Party the Operating Partnership has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied under this Agreement at or prior to the date hereof;Closing Time or the applicable Option Closing Time.
(l) Each Selling Stockholder (or one or more attorneys on behalf of the Selling Stockholders) will, at the Closing Time, deliver to the Underwriters a certificate to the effect that:
(i) the representations and warranties of such Selling Stockholder set forth in this Agreement and in the Custody Agreement and Power of Attorney are true and correct as of such date; and
(ii) no stop order suspending such Selling Stockholder has complied with all the effectiveness of agreements and satisfied all the Registration Statement conditions on its part to be performed or any post-effective amendment thereto or the S-4, satisfied hereunder and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement Custody Agreement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any Power of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunderAttorney, as the case may be, and in all material respects conformed applicable at or prior to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPsuch date.
(qm) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or thereinDisclosure Package, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(rn) (A) The Merger Agreement effecting Each of the First Merger Selling Stockholders shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Disclosure Package and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction PartyProspectus relating to such Selling Stockholder’s Selling Stockholder Information, as applicable; (B) , as of the Closing Time, the First Merger shall have closed, and there shall be no pending Time or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the any Option Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in as the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this AgreementUnderwriters may reasonably request.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company Transaction Entities and the Transaction Parties Manager hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company Transaction Entities and the Transaction Parties Manager of their respective obligations hereunder, hereunder and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer, Brown, ▇▇▇▇▇▇▇▇ & Maw Chance LLP, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery Option Closing Time and substantially to in the effect set forth on form attached hereto as Exhibit B hereto[ ].
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer, Brown, ▇▇▇▇▇▇▇▇ & Maw Chance LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Option Closing Time and substantially to in the effect set forth on form attached hereto as Exhibit C hereto[ ].
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date Option Closing Time an opinion of Delivery ▇▇▇▇▇▇▇▇ Chance S.C.S., special Luxembourg counsel for the Company, the Operating Partnership and C-QUADRAT, addressed to the Underwriters and dated the Closing Time and each Option Closing Time and substantially in the form attached hereto as Exhibit [ ].
(d) The Underwriters shall have received at the Closing Time and on each Option Closing Time an opinion of Wiersholm, special Norwegian counsel, addressed to the Underwriters and dated the Closing Time and each Option Closing Time and in form and substance satisfactory to the Representative, stating that the statements under the captions “Business – Norway” and “Norway Tax Considerations” in the Registration Statement, the Disclosure Package and the Prospectus, insofar as such statements constitute a summary of the legal matters referred to therein, constitute accurate summaries thereof in all material respects.
(e) The Underwriters shall have received at the Closing Time and on each Option Closing Time an opinion of ▇▇▇▇▇▇▇, LLPspecial Swedish counsel, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery Option Closing Time and substantially in form and substance satisfactory to the effect set forth on Exhibit D heretoRepresentative, stating that the statements under the captions “Business – Sweden” and “Sweden Tax Considerations” in the Registration Statement, the Disclosure Package and the Prospectus, insofar as such statements constitute a summary of the legal matters referred to therein, constitute accurate summaries thereof in all material respects.
(df) The Underwriters shall have received at the Closing Time and on each Option Closing Time an opinion of Kromann Reumert, special Danish counsel, addressed to the Underwriters and dated the Closing Time and each Option Closing Time and in form and substance satisfactory to the Representative, stating that the statements under the captions “Business – Denmark” and “Denmark Tax Considerations” in the Registration Statement, the Disclosure Package and the Prospectus, insofar as such statements constitute a summary of the legal matters referred to therein, constitute accurate summaries thereof in all material respects.
(g) The Company shall furnish to the Underwriters at the Closing Time and on each Date Option Closing Time opinions of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇local counsel reasonably acceptable to the Representative, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery Option Closing Time, and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPthe Representative, counsel for Underwritersstating that none of the Company, the Operating Partnership, the Manager or any of their respective affiliates are required to become authorized as, or required to comply with any requirements applicable to an alternative investment fund manager under the Implementing Legislation of the United Kingdom, the Netherlands or Luxembourg in connection with the transactions contemplated by this Agreement or the operation of such entities’ respective businesses as described in the Registration Statement, the Disclosure Package and the Prospectus.
(gh) The On the date of this Agreement and at the Closing Time and each Option Closing Time (if applicable), the Representative shall have received from Ernst & Young LLP letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offeringsofferings; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems deem such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hi) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(ij) The Representative shall have received at the Closing Time and on each Option Closing Time the favorable opinion of [_____________], special Luxembourg local counsel for the Underwriters, dated the Closing Time or such Option Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(k) [The Representative shall have received at the Closing Time and on each Option Closing Time the favorable opinion of [_____________], special [_____] counsel for the Underwriters, dated the Closing Time or such Option Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.]
(l) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve.
(m) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jn) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ko) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lp) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or any prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mq) The Shares shall have been approved for listing in the NYSEinclusion on NASDAQ.
(nr) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting underwristing terms and arrangements.
(os) The Representative shall have received lock-up agreements from C-QUADRAT and each officerofficer and director listed in the table under “Our Management—Our Directors, directorDirector Nominees and Our Manager’s Senior Management Team” set forth in the Registration Statement, the Disclosure Package and 1% or greater stockholder of the Company and Aames Financial IProspectus, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pt) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, substantially in the form attached hereto as applicable, to the effect that:Exhibit [___].
(iu) The Company shall have provided the representations and warranties Representative with satisfactory evidence that the Concurrent Private Placement has been consummated or shall be consummated concurrently with the purchase of the Company and Shares on the Transaction Parties in this Agreement are true and correctClosing Date, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given terms described in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company Disclosure Package and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPProspectus.
(qv) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (Aw) The Merger Agreement effecting the First Merger and the Second Merger Transactions described herein shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary completed and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and consummated in accordance with Section 262 of the Delaware General Corporation Lawtheir terms.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Initial Closing Time or on each Date of Deliveryat the Option Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Initial Closing Time and on each Date of Deliveryat the Option Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective its obligations hereunder, hereunder and the satisfaction of the following further conditions at the Initial Closing Time or on each Date of Deliveryat the Option Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters Representatives at the Initial Closing Time and on each Date at the Option Closing Time opinions of Delivery an opinion of Mayer, Brown, Hunton & ▇▇▇▇▇▇▇▇ & Maw LLP, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Initial Closing Time and each Date of Delivery and substantially to the effect Option Closing Time, as set forth on Exhibit B heretoSchedule VII.
(b) The Company shall furnish to the Underwriters Representatives at the Initial Closing Time and on each Date of Delivery at the Option Closing Time an opinion of Mayerthe Company’s Vice President, BrownGeneral Counsel and Corporate Secretary, addressed to the Representatives, dated the Initial Closing Time and Option Closing Time and otherwise in form and substance satisfactory to DLA ▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect stating as set forth on Exhibit C heretoSchedule VIII.
(c) The Company shall furnish to the Underwriters Representatives at the Initial Closing Time and on each Date of Delivery at the Option Closing Time an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special Maryland counsel for SFPof the Company, which opinion(s) shall be addressed to the UnderwritersRepresentatives, dated the Initial Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇DLA ▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP, counsel for the Underwriters, stating that:
(i) the Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and in good standing with the State Department of Assessments and Taxation of Maryland;
(ii) the Company has the corporate power to own its assets and to conduct its businesses as described in the Prospectus under the caption “Prospectus Summary” and to execute and deliver this Agreement and perform the obligations thereunder;
(iii) the authorized stock of the Company is as set forth under the caption “Capitalization” in the Prospectus;
(iv) the Initial Shares (or Option Shares, as applicable) have been duly authorized and, when issued in exchange for the consideration recited in this Agreement, will be validly issued, fully paid and non-assessable;
(v) no holder of outstanding shares of Common Stock or Preferred Stock has any statutory preemptive right under the Maryland General Corporation Law or any similar right under the charter of the Company (the “Charter”) or bylaws of the Company (the “Bylaws”) to subscribe for any of the Shares;
(vi) this Agreement has been duly authorized, executed and, so far as is known to such counsel, delivered on behalf of the Company;
(vii) the Common Stock conforms as to legal matters in all material respects to the description thereof set forth in the Prospectus under the caption “Description of Common Stock”; and the statements under the captions “Description of Common Stock,” “Certain Provisions of Maryland Law and of our Charter and Bylaws,” and “Restrictions on Ownership and Transfer” in the Prospectus and under Item 15 of the Registration Statement, insofar as such statements constitute a summary of the Charter or Bylaws or of Maryland law, constitute accurate summaries thereof in all material respects;
(viii) the execution, delivery and performance by the Company of this Agreement, and the consummation of the transactions contemplated herein, do not and will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of or default under) (A) the Charter or Bylaws of the Company, (B) any provision of the Maryland General Corporation Law, or (C) so far as is known to such counsel, any Maryland court or administrative order, judgment or decree applicable to the Company; and
(ix) no approval, authorization, consent or order of or filing with any Maryland regulatory agency is required to be obtained or made by the Company under the Maryland General Corporation Law in connection with the execution, delivery and performance, on the date hereof, by the Company of this Agreement, the consummation of the transactions contemplated herein or the sale and delivery of the Shares as contemplated herein, except as have been made, obtained or waived, if any. Counsel may call attention to the fact that, in connection with the delivery of its opinion, counsel has not ordered or reviewed judgment, lien or any other searches of public or private records of the Company or its properties.
(gd) The Representative Representatives shall have received from Ernst & Young LLP and McGladrey & ▇▇▇▇▇▇, LLP, letters dated, respectively, as of the date of this Agreement, the Initial Closing Time and each Date of Deliverythe Option Closing Time, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating to the financial statements, including any pro forma financial statements, of the Company and the SubsidiariesCompany, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative Representatives shall have received at the Initial Closing Time and on each Date of Delivery the Option Closing Time the favorable opinion of ▇▇DLA Piper ▇▇▇▇ & ▇▇▇▇▇▇▇ US LLP, dated the Initial Closing Time or such Date of Deliveryand Option Closing Time, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(if) No amendment or supplement to the Registration Statement Statement, the Disclosure Package or the Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jg) Prior to the Initial Closing Time and each Date of Delivery the Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 cease-and-desist order in connection with the public offering of the Shares or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Disclosure Package and the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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.
(kh) All filings with the Commission required by Rule 424 under of the Securities Act Regulations to have been filed by the Initial Closing Time shall have been made within the applicable time period prescribed for such filing by such Rulerule (without reliance on Rule 424(b)(8) of the Securities Act Regulations).
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(oj) The Representative Representatives shall have received lock-up executed lockup agreements from each officer, director, of the executive officers and 1% or greater stockholder directors of the Company and Aames Financial I, substantially in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this AgreementSchedule IX.
(pk) The Company and each Transaction Party shall, Representatives shall have received at or before the Initial Closing Time and on each Date of Deliveryat the Option Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Company’s Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicablein each case on behalf of the Company and not individually, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement that are not qualified by materiality or Material Adverse Effect are true and correctcorrect in all material respects and those representations and warranties of the Company in this Agreement that are qualified by materiality or Material Adverse Effect are true and correct in all respects, as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has complied with all the agreements in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofof such certificate;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or or, to such officer’s knowledge, threatened under the Securities Act;; and
(iii) when the Registration Statement Statement, at its initial effective date, the filing date of the Company’s Annual Report on Form 10-K for the year ended December 31, 2005, and S-4 became any subsequent effective date in connection with the Shares did not, the Disclosure Package, as of the Initial Sale Time and at all times subsequent thereto up to the date hereofof such certificate, the Registration Statement did not and does not, and the Prospectus, as of its date and the S-4 and any amendments or supplements to any date of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themsuch certificate, did not and do does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters Underwriter hereunder to purchase and pay for the Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Operating Partnership in Section 3 hereof, in each case on the date hereof and at the Closing Time and on each Date of Delivery, as if made on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, to the performance in all material respects by the Company and the Transaction Parties Operating Partnership of their respective obligations hereunder, hereunder to be performed at or prior to the Closing Time and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters Underwriter at the Closing Time and on each Date of Delivery an opinion and letter of Mayer, Brown, ▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇▇ LLP, corporate counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriter and dated the Closing Time and each Date of Delivery and substantially to the effect Delivery, as set forth on Exhibit in Exhibits A and B hereto, respectively.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters Underwriter at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Underwriter and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as set forth in Exhibit C hereto.
(c) On the case may bedate of this Agreement and at the Closing Time and each Date of Delivery (if applicable), the Underwriter shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated the respective dates of delivery thereof and addressed to the RepresentativeUnderwriter, in form and substance satisfactory to the RepresentativeUnderwriter, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriter and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Financial Statements and certain financial statements, including any pro forma financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Date of Delivery (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Date of Delivery, decreases in total assets or retained earnings or increases in borrowingsas the case may be.
(d) The Underwriter shall have received at the Closing Time and on each Date of Delivery (i) an opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, it shall be a further condition to counsel for the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company Underwriter, as to the significance thereof, unless the Representative deems such explanation unnecessarycertain federal income tax matters, and (Bii) such changesan opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, decreases or increases do notcounsel for the Underwriter, as to certain matters under the Investment Company Act, addressed to the Underwriter and dated the Closing Time and each Date of Delivery, as set forth in Exhibits D and E hereto, respectively. In addition, the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative Underwriter shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the underwriters, dated the Closing Time or such and each Date of Delivery, addressed to the Representative Underwriter and in form and substance satisfactory to the RepresentativeUnderwriter.
(ie) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Underwriter shall have reasonably objected in writingwriting prior to the filing thereof.
(jf) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all reasonable requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingUnderwriter.
(kg) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Delivery, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the RepresentativeUnderwriter’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementProspectus and the Disclosure Package.
(mi) The Shares shall have been approved for listing in on the NYSE, subject to notice of issuance.
(nj) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Underwriter shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, substantially in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed F hereto signed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth persons listed in Section 4(q)(E) of this AgreementSchedule II hereto.
(pk) The Company and each Transaction Party shallUnderwriter shall have received, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman two of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableCompany’s executive officers, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or such Date of Delivery, as applicable, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements of their respective obligations hereunder and satisfied in all material respects all of the conditions on its their part to be performed or satisfied at or prior to the date hereofClosing Time or such Date of Delivery, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered its subsidiaries taken as one enterprise, except transactions entered into in the ordinary course of businessa whole, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprisea whole, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiarya whole, or (fE) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Properties which has been sustained or will have been sustained which, individually or in the aggregate, has which would reasonably be expected to have a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(ql) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters Underwriter such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may Underwriter has reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable requested prior to the Representativedate hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Operating Partnership in Section 3 hereof, in each case on the date hereof and at the Closing Time and on each Date of Delivery, as if made on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, to the performance in all material respects by the Company and the Transaction Parties Operating Partnership of their respective obligations hereunder, hereunder to be performed at or prior to the Closing Time and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion and letter of Mayer, Brown, ▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇▇ LLP, corporate counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery and substantially to the effect Delivery, as set forth on Exhibit in Exhibits A and B hereto, respectively.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as set forth in Exhibit C hereto.
(c) On the case may bedate of this Agreement and at the Closing Time and each Date of Delivery (if applicable), the Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated the respective dates of delivery thereof and addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeUnderwriters, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the consolidated financial statementsstatements of the Company incorporated by reference in each of the Registration Statement, including any pro forma the Prospectus and the Disclosure Package and certain financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Date of Delivery (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Date of Delivery, decreases in total assets or retained earnings or increases in borrowingsas the case may be.
(d) The Underwriters shall have received at the Closing Time and on each Date of Delivery (i) an opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, it shall be a further condition to counsel for the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company Underwriters, as to the significance thereof, unless the Representative deems such explanation unnecessarycertain federal income tax matters, and (Bii) such changesan opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, decreases or increases do notcounsel for the Underwriters, as to certain matters under the Investment Company Act, addressed to the Representatives and dated the Closing Time and each Date of Delivery, as set forth in Exhibits D and E hereto, respectively. In addition, the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative Underwriters shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Time or such and each Date of Delivery, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(ie) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Representatives shall have reasonably objected in writingwriting prior to the filing thereof.
(jf) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all reasonable requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingRepresentatives.
(kg) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Delivery, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementProspectus and the Disclosure Package.
(mi) The Shares Company shall have been approved for listing in submitted an application to list the Shares on the NYSE.
(nj) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, substantially in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed F hereto signed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth persons listed in Section 4(q)(E) of this AgreementSchedule III hereto.
(pk) The Company and each Transaction Party shallRepresentatives shall have received, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman two of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableCompany’s executive officers, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or such Date of Delivery, as applicable, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements of their respective obligations hereunder and satisfied in all material respects all of the conditions on its their part to be performed or satisfied at or prior to the date hereofClosing Time or such Date of Delivery, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered its subsidiaries taken as one enterprise, except transactions entered into in the ordinary course of businessa whole, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprisea whole, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiarya whole, or (fE) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Properties which has been sustained or will have been sustained which, individually or in the aggregate, has which would reasonably be expected to have a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and ; and
(iv) above, may limit certification the Commission has not notified the Company of the matters set forth in subclause (i) above any objection to the representations, warranties and agreements use of SFP an “automatic shelf registration statement” (as defined in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPRule 405).
(ql) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may have reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable requested prior to the Representativedate hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Transaction Parties Advisor hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicableapplicable (as if made on and as of such date), the performance in all material respects by the Company Company, the Operating Partnership and the Transaction Parties Advisor of their respective obligations hereunder, hereunder and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters Representatives at the Closing Time and on each Date of Delivery an opinion Delivery, as applicable, opinions of Mayer, Brown, ▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction PartiesAdvisor, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery Delivery, as applicable, and substantially in form and substance satisfactory to counsel for the Underwriters to the effect set forth on in Exhibit A and Exhibit B heretohereto and to such further effect as counsel to the Underwriters may reasonably request.
(b) The Company shall furnish to the Underwriters Representatives at the Closing Time and on each Date of Delivery Delivery, as applicable, an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax in-house counsel for the Company, the Subsidiaries and each of the other Aames Transaction PartiesAdvisor, as to certain tax matters, which opinion shall be addressed to the Underwriters, Representatives and dated the Closing Time and substantially on each Date of Delivery, as applicable, and in form and substance satisfactory to counsel for the Underwriters to the effect set forth on in Exhibit C heretohereto and to such further effect as counsel to the Underwriters may reasonably request.
(c) The Company shall furnish to the Underwriters Representatives at the Closing Time and on each Date of Delivery Delivery, as applicable, an opinion of ▇▇▇▇▇▇▇, ▇ Lovells US LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General CounselDelivery, as to certain licensing applicable, and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwritersthe Underwriters to the effect set forth in Exhibit D hereto and to such further effect as counsel to the Underwriters may reasonably request.
(gd) The Representative Representatives shall have received from Ernst & Young BDO USA, LLP letters dated, respectively, a letter dated as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the Representative, Representatives relating to the consolidated financial statements, including any pro forma financial statements, statements of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In .
(e) The Representatives shall have received from Ernst & Young LLP a letter dated as of the event that date of this Agreement, the letters referred to above set forth any changes in indebtednessClosing Time and each Date of Delivery, decreases in total assets or retained earnings or increases in borrowingsas the case may be, it shall be a further condition addressed to the obligations of Representatives, in form and substance satisfactory to the Underwriters that (A) such letters shall be accompanied by a written explanation Representatives relating to the consolidated financial statements of the Company as to and the significance thereof, unless the Representative deems such explanation unnecessary, Subsidiaries and (B) such changes, decreases or increases do not, included in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus, and such other matters customarily covered by comfort letters issued in connection with registered public offerings.
(hf) The Representative Representatives shall have received at the Closing Time and on each Date of Delivery the favorable Delivery, as applicable, an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPDLA Piper LLP (US), counsel for the Underwriters, addressed to the Representatives and dated the Closing Time or such Date of Delivery, addressed to the Representative as applicable, and in form and substance satisfactory to the RepresentativeRepresentatives.
(ig) No amendment or supplement to the Registration Statement Statement, the General Disclosure Package or the Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jh) Prior to the Closing Time and each Date of Delivery (i) the Registration Statement shall be effective with the Commission and no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus preliminary prospectus or Prospectus has shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the General Disclosure Package and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(ki) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a Material Adverse Change Effect, whether or not arising in the ordinary course of business, and (ii) no transaction which that is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which that in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in on the NYSENew York Stock Exchange, subject only to official notice of issuance.
(nl) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(m) The Articles Supplementary shall have been accepted for record by the Maryland State Department of Assessments and Taxation and shall be effective under the Maryland General Corporation Law.
(n) The Representatives shall have received a copy of the Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
(o) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters as applicable, a certificate of its Chairman of the Board, Company’s Chief Executive Officer, President, President or Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act; and
(iii) subsequent to the respective dates as of which information is given in the General Disclosure Package or the Prospectus, there has not been (A) any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a Material Adverse Effect, whether or not arising in the ordinary course of business, (B) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, (C) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (E) any dividend or distribution of any kind declared, paid or made on the capital stock or other equity interests of the Company or any Subsidiary, or (F) any loss or damage (whether or not insured) to the property of the Company or any Subsidiary that has been sustained or will have been sustained that has or may reasonably be expected to have a Material Adverse Effect.
(p) The Representatives shall have received at the Closing Time and on each Date of Delivery, as applicable, a certificate of the Advisor’s Chief Executive Officer, President or Chief Operating Officer and Chief Accounting Officer or Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Advisor in this Agreement are true and correct, as if made on and as of such date, and the Advisor has complied with all material respects the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and General Disclosure Package or the Prospectus, there has not been (aA) any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have an Advisor Material Adverse ChangeEffect, whether or not arising in the ordinary course of business, or (bB) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPAdvisor.
(q) The Company Representatives shall have received as of the date of this Agreement, the Closing Time and each Transaction PartyDate of Delivery, as applicable, an officers’ certificate, executed on behalf of the Company by the Chief Financial Officer of the Company and the Chief Accounting Officer of the Company in form and substance satisfactory to counsel for the Underwriters.
(r) The Company, the Operating Partnership and the Advisor shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the General Disclosure Package and the Prospectus, the representations, warranties and statements of the Company Company, the Operating Partnership and the Advisor contained herein, and the performance by the Company Company, the Operating Partnership and the Transaction Parties Advisor of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the respective representations and warranties on the part of the Company Parties and the Transaction Parties hereunder on the date hereof and hereof, at the Closing Time and on each Date time of Delivery, as applicablepurchase, the performance in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, hereunder and the satisfaction of to the following further additional conditions at the Closing Time or on each Date of Delivery, as applicableprecedent:
(a) The Company You shall furnish to the Underwriters at have received on the Closing Time and on each Date of Delivery or the Option Closing Date, as the case may be, an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion negative assurance letter of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters datedthe Company, respectively, as of the date of this Agreement, dated the Closing Time and each Date of Deliveryor the Option Closing Date, as the case may be, addressed to the Representativewith executed copies for each Underwriter, and in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration StatementUnderwriters.
(hb) The Representative You shall have received at on the Closing Time Date or the Option Closing Date, as the case may be, an opinion of Walkers, Cayman Islands counsel for the Company, addressed to the Underwriters, and dated the Closing Date or the Option Closing Date, as the case may be, with executed copies for each Underwriter, and in form and substance satisfactory to the Underwriters.
(c) You shall have received on each the Closing Date of Delivery or the favorable Option Closing Date, as the case may be, an opinion of ▇▇▇▇▇▇▇ António Lawyers and Notaries, Macau counsel for the Company, addressed to the Underwriters, and dated the Closing Date or the Option Closing Date, as the case may be, with executed copies for each Underwriter, and in form and substance satisfactory to the Underwriters.
(d) You shall have received from Ernst & Young, independent registered public accountants, letters dated, respectively, the date of the Prospectus, the Closing Date and the Option Closing Date, as the case may be, and addressed to the Underwriters (with executed copies for each Underwriter) in the forms satisfactory to the Underwriters, 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, the Disclosure Package and the Prospectus, provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days preceding the date hereof.
(e) You shall have received on the Closing Date or the Option Closing Date, as the case may be, an opinion and negative assurance letter of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Underwriters, dated the Closing Time Date or such Date of Deliverythe Option Closing Date, addressed to as the Representative and case may be, in form and substance reasonably satisfactory to the RepresentativeUnderwriters;
(f) You shall have received on the Closing Date or the Option Closing Date, as the case may be an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Advogados & Notários, Macau counsel for the Underwriters, dated the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters;
(g) You shall have received on and as of the Closing Date or the Option Closing Date, as the case may be, an opinion of White & Case LLP, counsel for the Depositary, with respect to such matters as the Underwriters may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(ih) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Underwriters you shall have objected in writing.
(i) The Registration Statement and any registration statement required to be filed, prior to the sale of the Offered ADSs, under the Act pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act. The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New York City time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Act).
(j) Prior to and at the Closing Time and each Date time of Delivery purchase (i) no stop order suspending with respect to the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been issued under the Act or proceedings initiated under Section 8(d) or threatened, by the Commission, and no suspension 8(e) of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurredAct; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement and all amendments thereto shall not contain an untrue statement of a material fact or 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, therein not misleading.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when none of the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and Pre-Pricing Prospectuses or the Prospectus, and the S-4 and any amendments no amendment or supplements to any of themsupplement thereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not shall include any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the respective dates as of which information is given statements therein, in the Registration Statementlight of the circumstances under which they are made, S-4 not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or, together with the Disclosure Package including the then most recent Pre-Pricing Prospectus, there has not been (a) any Material Adverse Changeomit to state a material fact necessary in order to make the statements therein, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness light of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprisecircumstances under which they are made, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPmisleading.
(qk) The Company and each Transaction Party, as applicable, shall have furnished to you, on the Underwriters Closing Date and each Option Closing date, as the case may be, a certificate of its Property President or its Property Chief Financial Officer in the form attached as Exhibit B hereto.
(l) You shall have received the signed Lock-Up Agreements in the form attached as Exhibit A hereto from each of the parties listed in Schedule D attached hereto, and the Lock-Up Agreements shall be in full force and effect at the time of purchase. If any additional persons shall become directors or executive officers of the Company and acquire or are granted ADSs or any other securities of the Company Parties that are substantially similar to the ADSs, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase such securities prior to the end of the Company Lock-up Period (as defined below), the Company shall cause each such person, prior to or contemporaneously with their appointment or election as a director or executive director of the Company, to execute and deliver to the Designated Representative a Lock-up Agreement.
(m) The Company shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Statement, any Pre-Pricing Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of Prospectus or any conditions contained herein or therein, Permitted Free Writing Prospectus as of the Closing Time or any Date time of Deliverypurchase, as the Underwriters you may reasonably request.
(rn) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, or other arrangements of the transactions, contemplated hereby.
(Ao) The Merger Agreement effecting Company’s Property Chief Financial Officer shall have furnished to you, on the First Merger date of the Prospectus, the Closing Date and each Option Closing date, as the case may be, a certificate dated the date of the time of purchase, substantially as set forth in Exhibit C hereto.
(p) At least one business day prior to the applicable time of purchase, all instruction letters required to be delivered to the transfer agent, Registrar and the Second Merger Depositary by the Company to effect closing of the transaction contemplated hereunder, in form and substance satisfactory to the Underwriters.
(q) At the Closing Date, the Offered ADSs shall have been duly authorized by all necessary corporate action approved for listing on the part NYSE, subject only to official notice of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreementissuance.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (STUDIO CITY INTERNATIONAL HOLDINGS LTD)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Shareholders hereunder and under the Custody Agreement and Power of Attorney on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Shareholders of their respective obligations hereunder, hereunder and under the Custody Agreement and Power of Attorney and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion and letter of Mayer, Brown, ▇▇▇▇▇ & Maw LLP▇▇▇▇▇▇▇▇, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery Option Closing Time and in form and substance substantially similar to the effect set forth on Exhibit B heretoC-1 and C-2, respectively.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer, Brown▇▇▇▇▇▇▇, ▇▇▇▇ & Maw LLP▇▇▇▇▇▇▇, special tax Bermuda counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Option Closing Time and in form and substance substantially similar to the effect set forth on Exhibit C hereto.D.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, LLP, Maryland senior corporate counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery Option Closing Time and in form and substance substantially similar to the effect set forth on Exhibit D hereto.E.
(d) The Company On behalf of the Selling Shareholders, the following opinions shall furnish be furnished to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Time: (i) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.▇, Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date general counsel of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & The ▇▇▇▇▇▇▇ LLP▇. ▇▇▇▇▇▇ Foundation and (ii) ▇▇▇▇▇▇▇ Field, special counsel for SFPGeneral Counsel of ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Capital Management LLC, which opinion(s) shall be each addressed to the UnderwritersUnderwriters and dated the Closing Time, dated and in form and substance substantially similar to Exhibit F.
(e) On the date of this Agreement and at the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Option Closing Time (if applicable), the Representatives shall have received from Pricewaterhouse Coopers and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP Co. letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems Representatives deem such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hf) The Representative Representatives shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ Lord Bissell & ▇▇▇▇▇▇▇ Brook LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(ig) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jh) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ki) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule, and all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing inclusion in the NYSENasdaq Global Market.
(nl) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(om) The Representative Representatives shall have received lock-up agreements from each officer, director, director and 1% or greater stockholder of the Company and Aames Financial I, Selling Shareholder in the form of Exhibit A B-1 or B-2 attached hereto, as applicable, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pn) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the share capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the share capital stock of the Company or any SubsidiarySubsidiary other than the dividend payable on the Company’s common shares on March 30, 2007 to shareholders of record as of March 15, 2007, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided.
(o) The Selling Shareholders will, that at the certificate delivered by Closing Time and on each Option Closing Time, deliver to the applicable officers of SFP may omit Underwriters a certificate, to the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause effect that:
(i) above to the representations, representations and warranties and agreements of SFP the Selling Shareholders set forth in this Agreement and may limit certification in the Custody Agreement and may limit certification Power of Attorney are true and correct as of such date; and
(ii) each of the matters set forth in subclause (iii) above Selling Shareholders has complied with all the agreements and satisfied all the conditions on its part to information, facts be performed or satisfied hereunder and events relating under the Custody Agreement and Power of Attorney at or prior to SFPthe date hereof.
(qp) The Company and each Transaction Partythe Selling Shareholders, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement their respective statements in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the respective representations, warranties and statements of the Company and the Selling Shareholders contained hereinherein and in the Custody Agreement and Power of Attorney, and the performance by the Company and the Transaction Parties Selling Shareholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (CastlePoint Holdings, Ltd.)
Conditions of the Underwriters’ Obligations. (a) The obligations of the Underwriters hereunder to purchase Shares at on the First Closing Time Date or on each Date of DeliveryOption Closing Date, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at on the First Closing Time Date and on each Date of DeliveryOption Closing Date, as applicable, the performance in all material respects by the Company of its covenants and the Transaction Parties of their respective other obligations hereunder, hereunder and to the satisfaction of the following further conditions at the First Closing Time Date or on each Date of DeliveryOption Closing Date, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at Representatives on the First Closing Time Date and on each Option Closing Date of Delivery an opinion or opinions of Mayer▇▇▇▇▇▇, Brown, ▇▇▇▇▇ & Maw Bockius LLP, special tax counsel for the Company, Company and the Subsidiaries (and the Representatives shall have received an additional six conformed copies of each of such counsel's legal opinion for each of the other Aames Transaction Partiesseveral Underwriters), addressed to the Underwriters and dated the First Closing Date and each Option Closing Date, as applicable, and in form and substance reasonably satisfactory to Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect matters set forth on Exhibit C A hereto.
(c) The Company shall furnish to the Underwriters at Representatives on the First Closing Time Date and on each Option Closing Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the CompanyCompany (and the Representatives shall have received an additional six conformed copies of each of such counsel's legal opinion for each of the several Underwriters), which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the First Closing Time Date and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General CounselDate, as to certain licensing applicable, and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance reasonably satisfactory to Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, as to the matters set forth on Exhibit B hereto.
(gd) The Representative Representatives shall have received from Ernst & Young LLP LLP, letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, relating containing statements to the financial statements, including any pro forma financial statements, effect that they are independent accountants with respect to the Company within the meaning of Rule 101 of the Company AICPA's Code of Professional Conduct, and statements and information of the type ordinarily included in accountant's "comfort letters" to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement and the Subsidiaries, Prospectus (and the Representatives shall have received an additional six conformed copies of such other matters customarily covered by comfort letters issued in connection with registered public offerings. accountants' letter for each of the several Underwriters); In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, in each case not contemplated by the Prospectus, it shall be a further condition to the obligations of the Underwriters that (Aa) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems Representatives deem such explanation unnecessary, and (Bb) such changes, decreases or increases do not, in the sole judgment of the RepresentativeRepresentatives, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) At the First Closing Date and each Option Closing Date, the Representatives shall have received from Ernst & Young LLP, independent public or certified public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (d) of this Section 6, except that the specified date referred to therein for the carrying out of procedures shall be no more than five business days prior to the First Closing Date or Option Closing Date, as the case may be (and the Representatives shall have received an additional six conformed copies of such accountants' letter for each of the several Underwriters).
(f) The Representative Representatives shall have received at the First Closing Time Date and on each Date of Delivery Option Closing Date, as applicable, the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the First Closing Time Date or such Date of DeliveryOption Closing Date, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(ig) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jh) Prior to the First Closing Time Date and each Option Closing Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 any post-effective amendment to the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issuedissued or is in effect, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, Statement and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(ki) All filings Prior to the First Closing Date and each Option Closing Date, the Company shall have filed the Prospectus with the Commission (including the information required by Rule 424 430A under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430A, and such post-effective amendment shall have become effective; or, if the Company elected to rely upon Rule 434 under the Securities Act to have been filed by and obtained the Closing Time Representatives consent thereto, the Company shall have been made filed a term sheet with the Commission in the manner and within the applicable time period prescribed for such filing required by such RuleRule 424(b).
(lj) Between the time of execution of this Agreement and the First Closing Time Date or the relevant Option Closing Date of Delivery (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in on the NYSENew York Stock Exchange.
(nl) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(om) The Representative Representatives shall have received lock-up letter agreements from each officer, director, officer and 1% or greater stockholder trustee of the Company and Aames Financial Ifrom Vornado Realty, L.P. substantially in the form of Exhibit A C attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pn) The Company and each Transaction Party shallRepresentatives shall have received, at the First Closing Time Date and on each Date of DeliveryOption Closing Date, deliver to the Underwriters a certificate of its Chairman duly authorized officers of the BoardCompany and the Partnership, Chief Executive Officersolely in their respective capacities as officers, President, Chief Operating Officer dated as of such First Closing Date or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableOption Closing Date, to the effect that the signers of such certificates have carefully examined the Prospectus, any amendment or supplement to the Prospectus and this Agreement, and that:
(i) the representations and warranties of the Company and the Transaction Parties Partnership in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be complied with, performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themthereto, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration StatementStatement and the Prospectus, S-4 and except as described in the Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or the capital stock, limited liability company membership interests or units of limited partnership interest of any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided.
(o) The Representatives shall receive, that at the First Closing Date and on each Option Closing Date, a certificate delivered by of the applicable officers Secretary of SFP may omit the matters set forth in subclauses Company certifying as to (i) the Declaration of Trust and any amendments thereto, (ii) the Bylaws and any amendments thereto, (iii) resolutions of the Board of Trustees of the Company authorizing the execution and delivery of this Agreement, the issuance and sale of the Shares and performance of the Company's and the Partnership's other obligations under this Agreement and the other offering documents, (iv) above, may limit certification the Certificate of Limited Partnership of the matters set forth in subclause Partnership and the Partnership Agreement and any amendments thereto, (iv) above correspondence with the Commission, (vi) a specimen Common Shares certificate, (vii) the number of Common Shares authorized and reserved for issuance by the Company and (viii) the minute books of the Company.
(p) On or prior to the representationsdate hereof, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to Company shall have furnished for review by the Representatives such further information, facts certificates and events relating to SFPdocuments as the Representatives may reasonably request.
(q) The Company and each Transaction Partythe Partnership, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company and the Partnership contained herein, herein and the performance by the Company and the Transaction Parties Partnership of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the First Closing Time Date or any Date of DeliveryOption Closing Date, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Initial Closing Time or on each Date of Deliveryat the Option Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Initial Closing Time and on each Date of Deliveryat the Option Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective its obligations hereunder, hereunder and the satisfaction of the following further conditions at the Initial Closing Time or on each Date of Deliveryat the Option Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters Representative at the Initial Closing Time and on each Date at the Option Closing Time opinions of Delivery an opinion of Mayer, Brown, ▇▇▇▇ Hunton & Maw Williams LLP, counsel for t▇▇ ▇▇▇▇▇ny and the CompanySubsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Representative and dated the Initial Closing Time and each Date of Delivery and substantially to the effect Option Closing Time, as set forth on Exhibit B hereto.Schedule V.
(b) The Company shall furnish to the Underwriters Representative at the Initial Closing Time and on each Date of Delivery at the Option Closing Time an opinion of Mayerthe Company's Vice President, BrownGeneral Counsel and Corporate Secretary, addressed to the Representative, dated the Initial Closing Time and Option Closing Time and otherwise in form and substance satisfactory to DLA Piper Rudnick Gray Cary US ▇▇▇, ▇▇▇▇▇▇▇ & Maw LLPf▇▇ ▇▇▇ ▇▇derwriters, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, stating as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C heretoSchedule VI.
(c) The Company shall furnish to the Underwriters Representative at the Initial Closing Time and on each Date of Delivery at the Option Closing Time an opinion of Venable LLP, special Maryla▇▇ ▇▇▇▇▇▇▇, LLP, Maryland counsel for sel of the Company, which opinion(s) shall be addressed to the UnderwritersRepresentative, dated the Initial Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to DLA Piper Rudnick Gray Cary US ▇▇▇▇▇▇ & , ▇▇▇▇▇▇▇ LLPf▇▇ ▇▇▇ ▇▇derwriters, stating that:
(i) the Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and in good standing with the State Department of Assessments and Taxation of Maryland;
(ii) the Company has the corporate power to own its assets and to conduct its businesses as described in the Prospectus Supplement under the caption "Summary" and to execute and deliver this Agreement and perform the obligations thereunder;
(iii) the authorized stock of the Company is as set forth under the caption "Capitalization" in the Prospectus Supplement;
(iv) the Initial Shares (or Option Shares, applicable) have been duly authorized and, when issued in exchange for the consideration recited in this Agreement, will be validly issued, fully paid and non-assessable;
(v) no holder of outstanding shares of Common Stock or Series A Preferred Stock has any statutory preemptive right under the Maryland General Corporation Law or any similar right under the charter of the Company (the "Charter") or bylaws of the Company (the "Bylaws") to subscribe for any of the Shares;
(vi) this Agreement has been duly authorized, executed and, so far as is known to such counsel, delivered on behalf of the Company;
(vii) the Series A Preferred Stock conforms as to legal matters in all material respects to the description thereof set forth in the Prospectus under the caption "Description of the Series A Preferred Stock" and "Description of Preferred Stock"; and the statements under the captions "Description of Common Stock," "Certain Provisions of Maryland Law and of our Charter and Bylaws," and "Restrictions on Ownership and Transfer" in the Prospectus and under Item 15 of the Registration Statement, insofar as such statements constitute a summary of the Company's charter or bylaws or of Maryland law, constitute accurate summaries thereof in all material respects;
(viii) the execution, delivery and performance by the Company of this Agreement, and the consummation of the transactions contemplated herein, do not and will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of or default under) (A) the Charter or Bylaws of the Company, (B) any provision of the Maryland General Corporation Law, or (C) so far as is known to such counsel, any Maryland court or administrative order, judgment or decree applicable to the Company;
(ix) the Articles Supplementary have been filed with the Maryland State Department of Assessment and Taxation; and
(x) no approval, authorization, consent or order of or filing with any Maryland regulatory agency is required to be obtained or made by the Company under the Maryland General Corporation Law in connection with the execution, delivery and performance, on the date hereof, by the Company of this Agreement, the consummation of the transactions contemplated herein or the sale and delivery of the Shares as contemplated herein, except as have been made, obtained or waived, if any. Counsel may call attention to the fact that, in connection with the delivery of its opinion, counsel for Underwritershas not ordered or reviewed judgment, lien or any other searches of public or private records of the Company or its properties.
(gd) The Representative shall have received from Ernst & Young LLP and McGladrey & Pullen, LLP, letters dated, respectively▇▇▇▇▇ctively, as of the date of this Agreement, the Initial Closing Time and each Date of Deliverythe Option Closing Time, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the SubsidiariesCompany, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative shall have received at the Initial Closing Time and on each Date of Delivery the Option Closing Time the favorable opinion of ▇▇▇▇▇▇ & DLA Piper Gray Cary US LLP, dated the ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Deliveryand Option Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(if) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jg) Prior to the Initial Closing Time and each Date of Delivery the Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any the Preliminary Prospectus or Prospectus has shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, Statement and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(kh) All filings with the Commission required by Rule 424 and Rule 430A under the Securities Act to have been filed by the Initial Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(oj) The Representative shall have received lock-up agreements from each officer, director, and 1% at or greater stockholder of before the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Initial Closing Time and on each Date of Deliveryat the Option Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Company's Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicablein each case on behalf of the Company and not individually, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement that are not qualified by materiality or Material Adverse Effect are true and correctcorrect in all material respects and those representations and warranties of the Company in this Agreement that are qualified by materiality or Material Adverse Effect are true and correct in all respects, as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has complied with all the agreements in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or or, to such officer's knowledge, threatened under the Securities Act;; and
(iii) when the Registration Statement and S-4 Statement, when it became effective and at all times subsequent thereto up to the date hereofeffective, the Registration Statement did not, and the Prospectus, and the S-4 and any amendments or supplements to any as of them, contained all material information required to be included therein by the Securities Act its date or the Exchange Act and the applicable rules and regulations date of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themsuch certificate, did not and do does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company Company, NYMC and the Transaction Parties Founding Members hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company Company, NYMC and the Transaction Parties Founding Members of their respective obligations hereunder, hereunder and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an two opinions of Hunton & Williams LLP (each of which may rely on the opinion of Mayer, Brown, Venable L▇▇ ▇▇ ▇▇e extent that any opinion contained therein per▇▇▇▇▇ & Maw LLP▇o Maryland law), counsel for the Company, the Subsidiaries NYMC and each of the other Aames Transaction PartiesNYMF, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance reasonably satisfactory to McDermott, Will & Emery, counsel for the effect set Underwriters, with resp▇▇▇ ▇▇ ▇▇e matters ▇▇▇ forth on Exhibit B A-1 and Exhibit A-2 hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw Venable LLP, special tax Maryland counsel for the Company, the Subsidiaries addressed ▇▇ ▇▇▇ Underwriters and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially each Date of Delivery and in form and substance reasonably satisfactory to McDermott, Will & Emery, counsel for the effect set Underwriters, with resp▇▇▇ ▇▇ ▇▇e matters ▇▇▇ forth on Exhibit C B hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Wiener Brodsky, Sidman & Kider, P.C., special regulatory counsel for th▇ ▇▇▇▇▇ny, ▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed ▇▇essed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance reasonably satisfactory to McDermott, Will & Emery, counsel for the effect set Underwriters, with resp▇▇▇ ▇▇ ▇▇e matters ▇▇▇ forth on Exhibit D C hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst Deloitte & Young LLP Touche LLP, letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance reasonably satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the SubsidiariesNYMC, data with respect to NYMC's historical operations, and such other financial matters included within any Preliminary Prospectus and the Prospectus as are customarily covered by comfort letters issued in connection with registered public offeringsofferings involving similar companies. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or earnings, increases in borrowings, or changes in NYMC's historical operating data from the related information set forth in any Preliminary Prospectus or the Prospectus it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(jf) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, threatened by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, Statement and the Prospectus nor the S-4 shall not contain an any untrue statement of a material fact or 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.
(kg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRule and in accordance with this Agreement.
(lh) Between the time of execution date of this Agreement and the Closing Time or the relevant Date of Delivery Delivery: (i) there shall not have been any a Material Adverse Change or any event or development that could reasonably be expected to have a Material Adverse Effect and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiariesits subsidiaries, in each case, which in the Representative’s 's sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mi) The Shares shall have been approved for listing in on the NYSENew York Stock Exchange, subject to official notice of issuance.
(nj) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ok) The Representative shall have received lock-up letter agreements from each officer, director, executive officer and director of the Company (and each director nominee named in the Prospectus) and each 1% or greater stockholder of the Company and Aames Financial ICompany, if any, substantially in the form of Exhibit A attached heretoD, and such letter agreements shall be in full force and effect; provided, however, that . The persons from whom the Representative expects to receive such lock-up letter agreement with SFP may permit SFP agreements are listed on Schedule D-1 to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.Exhibit D.
(pl) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties NYMC in this Agreement are are, if qualified as to materiality, true and correctcorrect in all respects and, if not so qualified, true and correct in all material respects, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) each Preliminary Prospectus and, when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of themthereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, thereunder and in all material respects conformed to the requirements of the Securities Act or and the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themthereto, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 each Preliminary Prospectus and the Prospectus, and except as may be otherwise stated in such Registration Statement, Preliminary Prospectus or Prospectus, there has not been (aA) any a Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company Change or any Subsidiary that is material event or development including, but not limited to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company Company, NYMC or any subsidiary which has been sustained or will NYMF, that could reasonably be expected to have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, whether or not arising in the ordinary course of business, (B) any transaction that is material to the certificate delivered Company, NYMC and NYMF taken as a whole, entered into by the applicable officers of SFP may omit Company, NYMC or NYMF, (C) any liability or obligation, contingent or otherwise, directly or indirectly incurred by the matters set forth in subclauses (ii) and (iv) aboveCompany, may limit certification of the matters set forth in subclause (i) above NYMC or NYMF that is material to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction Partyits subsidiaries taken as a whole, (D) any dividend or distribution of any kind declared, paid or made by the Company or NYMC on any class of its capital stock or membership interests or any repurchase or redemption by the Company or NYMC of any class of capital stock or other equity interests, or (E) any change in the capital stock or membership interests, as applicable, or long-term debt or short-term borrowings of the Company, NYMC or NYMF;
(m) Each of the Founding Members will, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate signed by such Founding Member to the effect set forth in subsections 6(k)(i) through (k)(iv) above.
(n) NYMC will, at the Closing Time and on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Financial Officer to the effect set forth in subsections 6(k)(i) through (k)(iv) above but only with respect to NYMC.
(o) The Company, NYMC and the Founding Members shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company Company, NYMC and the Founding Members contained herein, and the performance by the Company Company, NYMC and the Transaction Parties Founding Members of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (Ap) The Merger Agreement effecting the First Merger Company, NYMC and the Second Merger Founding Members each shall have been duly authorized performed in all material respects its obligations under this Agreement as are to be performed by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of terms hereof at or before the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger Time or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and relevant Date of Delivery.
(Cq) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the The consummation of the transactions contemplated by this the Contribution Agreement or otherwise adversely affect shall occur at the ability of any party hereto Closing Time with respect to fulfill its obligations under the Initial Shares pursuant to this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (New York Mortgage Trust Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time (i) an opinion of Mayer, Brown, N▇▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & S▇▇▇▇▇▇▇▇▇▇ LLP, counsel for Underwritersthe Company and the Subsidiaries, addressed to the Underwriters and dated the Closing Time and each Option Closing Time, as applicable, and (ii) an opinion of H▇▇▇▇▇▇ H▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ & Manner, P.C., counsel for the Company and the Subsidiaries, addressed to the Underwriters and dated the Closing Time and each Option Closing Time, as applicable, each in form and substance satisfactory to Pillsbury W▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters to the effect set forth in Exhibit B and Exhibit C, respectively.
(gb) The On the date of this Agreement and at the Closing Time and each Option Closing Time (if applicable), the Representative shall have received from G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Ernst & Young LLP letters datedand S▇▇▇▇▇▇▇ K▇▇▇ & Co., LLP, respectively, as letters dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hc) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of Pillsbury W▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(id) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve.
(e) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jf) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or any prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mi) The Shares shall have been approved for listing in on the NYSENasdaq Global Market, subject to official notice of issuance.
(nj) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ok) The Representative shall have received lockLock-up agreements from each officer, director, and 1% or greater stockholder Up Letter Agreements contemplated by Section 4 of the Company and Aames Financial I, in the form of Exhibit A attached hereto, this Agreement and such letter agreements Lock-Up Letter Agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pl) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of the Company signed on its Chairman of the Board, behalf by its Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of themthereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forthforth (provided, however, that the Company shall make no warranty or representation with respect to any statement contained in or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters through the Representative to the Company expressly for use therein (that information being limited to that described in the last sentence of the first paragraph of Section 9(b) hereof)); and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qm) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Goldleaf Financial Solutions Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the respective representations and warranties on the part of the Company and the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement and Power of Attorney, applicable, on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective obligations hereunderhereunder and under the Custody Agreement and Power of Attorney, as applicable, and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish or cause to be furnished to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Option Closing Time the opinion and each Date negative assurance letter of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, M▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the Underwriters and dated the Closing Time and each Option Closing Time, substantially in the form of Exhibit C-1 hereto. In addition, the Company shall furnish or caused to be furnished to the Underwriters at the Closing Time and on each Option Closing Time the opinion of M▇▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ LLP, tax counsel for the Company, regarding certain U.S. federal income tax matters, addressed to the Underwriters and dated the Closing Time and on each Option Closing Time, substantially in the form of Exhibit C-2 hereto.
(b) The Selling Stockholders shall furnish to the Underwriters at the Closing Time an opinion of Sidley Austin LLP and certain special counsel, or such other counsel acting on behalf of the Selling Stockholders, reasonably acceptable to the Representative, addressed to the Underwriters substantially in the forms set forth in Exhibit D-1 and Exhibit D-2 respectively, hereto.
(c) The Underwriters shall have received at the Closing Time a favorable opinion and negative assurance letter from Hunton & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Time, in form and substance satisfactory to the Underwriters.
(gd) The Representative Underwriters shall have received from Ernst & Young M▇▇▇ A▇▇▇▇ LLP letters a “comfort” letter dated, respectively, as of the date of this Agreement, hereof and the Closing Time and on each Date of Delivery, as the case may beOption Closing Time, addressed to the Representative, in substantially the form attached as Exhibit E-1 hereto and substance satisfactory an “Agreed Upon Procedures” report dated as of the date hereof and the Closing Time and on each Option Closing Time addressed to the Representative, relating to Representative in substantially the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offeringssame form attached as Exhibit E-2 hereto. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jf) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or any prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mi) The Shares shall have been approved for listing in on the NYSE.
(nj) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ok) The Representative shall have received lock-up agreements from each officer, director, officer and 1% or greater stockholder director of the Company and Aames Financial ICompany, in the form of Exhibit A B attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pl) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of themthereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and the Registration Statement, the S-4Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any an untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses .
(iim) and Each Selling Stockholder (iv) above, may limit certification or one or more attorneys on behalf of the matters set forth in subclause Selling Stockholders) will, at the Closing Time, deliver to the Underwriters a certificate, to the effect that:
(i) above to the representations, representations and warranties and agreements of SFP such Selling Stockholder set forth in this Agreement and may limit certification in the Custody Agreement and may limit certification Power of Attorney are true and correct as of such date; and
(ii) such Selling Stockholder has complied with all the matters set forth in subclause (iii) above agreements and satisfied all the conditions on its part to informationbe performed or satisfied hereunder and under the Custody Agreement and Power of Attorney, facts and events relating as applicable at or prior to SFPsuch date.
(qn) The Company and each Transaction Partythe Selling Stockgholders, as applicable, applicable shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained hereinherein and in the Custody Agreement and Power of Attorney, and the performance by the Company and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(ro) (A) The Merger Agreement effecting Each of the First Merger Selling Stockholders shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Prospectus and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction PartyDisclosure Package relating to such Selling Stockholder’s Selling Stockholder Information, as applicable; (B) , the respective representations, warranties and statements of such Selling Stockholder contained herein and in the Custody Agreement and Power of Attorney, as applicable, and the performance by such Selling Stockholder of such Selling Stockholder’s covenants contained herein and therein, as applicable, and the fulfillment of any conditions contained herein or therein, as applicable, as of the Closing Time, as the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this AgreementUnderwriters may reasonably request.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Operating Partnership hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties Operating Partnership of their respective obligations hereunder, hereunder to be performed at or prior to the Closing Time and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, (i) ▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇▇ LLP, corporate counsel for the Company, Company and the Subsidiaries and each of (ii) Hunton & ▇▇▇▇▇▇▇▇ LLP, special tax counsel for the other Aames Transaction PartiesCompany and the Subsidiaries, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters, to the effect set forth on Exhibit in Exhibits A and B hereto.
(b) , respectively. The Company shall additionally furnish to the Underwriters at as of the Closing Time and on each Date of Delivery an additional opinion of Mayer, Brown, Hunton & ▇▇▇▇▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially LLP to the effect set forth on Exhibit C heretothat the Company is not, and the transactions contemplated by the Underwriting Agreement will not cause the Company to become, an “investment company” or an entity controlled by an “investment company,” as such term is defined under the Investment Company Act.
(cb) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance reasonably satisfactory to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chance US LLP, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to counsel for the Underwriters, dated stating that:
(i) each of the Company and the Private REIT is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the State Department of Assessments and Taxation of Maryland and has the corporate power to own its properties and to conduct its business as described in each of the Prospectus and the Disclosure Package;
(ii) the Company has the corporate power to enter into and perform this Agreement and to consummate the transactions contemplated herein; this Agreement has been duly authorized executed and, so far as is known to such counsel, delivered by the Company;
(iii) the issuance of the Shares has been duly authorized and, when and if issued and delivered against payment therefor in accordance with this Agreement, the Registration Statement and the resolutions adopted by the Board of Directors of the Company, or duly authorized committees thereof, relating to, among other matters, (a) the sale and issuance of the Shares, and (b) the authorization of the execution, delivery and performance by the Company of this Agreement (collectively, the “Resolutions”), the Shares will be validly issued, fully paid and non-assessable;
(iv) the statements under the captions “Risk Factors - Risks Related to Our Company - Maryland takeover statutes may prevent a change of our control. This could depress our stock price,” “Risk Factors - Risks Related to Our Company - Our authorized but unissued common and preferred stock and other provisions of our charter and bylaws may prevent a change in our control,” “Description of Common Stock and Preferred Stock” and “Important Provisions of Maryland Law and of Our Charter and Bylaws” in each of the Registration Statement, the Prospectus and the Disclosure Package, and “Description of the Series B Preferred Stock” in the Prospectus and the Disclosure Package, insofar as such statements constitute summaries of the charter of the Company (the “Company Charter”), the bylaws of the Company (the “Company Bylaws”) or Maryland law, constitute accurate summaries thereof in all material respects;
(v) As of February 7, 2007, the Company had 61,337,781 common shares issued and outstanding, and 2,400,000 Series A Cumulative Non-Voting Preferred Stock issued and outstanding (the “Company Outstanding Shares”). All of the Company Outstanding Shares have been duly and validly authorized and issued and are fully paid and nonassessable; and none of the Company Outstanding Shares were issued in violation of any preemptive or similar rights arising under the Company Charter, the Company Bylaws or the Maryland General Corporation Law (the “MGCL”);
(vi) The outstanding shares of stock of the Private REIT (the “Private REIT Outstanding Shares”) have been duly authorized and are validly issued, fully paid and nonassessable; the Private REIT Outstanding Shares are owned of record by the Operating Partnership other than one hundred and twenty-five (125) shares of the Private REIT’s 12.5% Series A Cumulative Non-Voting Preferred Stock which are held by outside investors;
(vii) the issuance and sale of the Shares by the Company are not subject to preemptive or other similar rights arising under the Company Charter, the Company Bylaws or the MGCL;
(viii) the Shares conform in all material respects to the descriptions thereof contained in each of the Prospectus and the Disclosure Package under the caption “Description of the Series B Preferred Stock”;
(ix) the form of certificate used to represent the Preferred Stock complies in all material respects with all applicable statutory requirements of the MGCL and with any applicable requirements of the Company Charter and the Company Bylaws;
(x) the execution and delivery by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly authorized by the Company and do not and will not conflict with the Company Charter or the Company Bylaws; and
(xi) the Articles Supplementary have been duly authorized by all necessary corporate action and stockholder action on behalf of the Company and have been filed with the Maryland State Department of Assessments and Taxation (the “Maryland SDAT”).
(c) On the date of this Agreement and at the Closing Time and each Date of Delivery and substantially to (if applicable), the effect set forth on Exhibit E hereto.
(e) SFP Representatives shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇have received from ▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Historical Financial Statements of the Covered Entities and certain financial statements, including any pro forma financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Date of Delivery (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Date of Delivery, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to as the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statementcase may be.
(hd) The Representative Representatives shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Chance US LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(ie) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representatives shall approve.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Representatives shall have objected in writingwriting prior to the filing thereof.
(jg) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingRepresentatives.
(kh) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Delivery, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementProspectus and the Disclosure Package.
(mj) The Shares shall have been approved for listing in on the NYSE or the Company will use its commercially reasonable best efforts to have listed on the NYSE, subject to notice of issuance.
(nk) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shallreceived, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Company’s Chief Financial Officer, Officer and General Partner or Managing Member, as applicablecounsel, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or such Date of Delivery, as applicable, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements of their respective obligations hereunder and satisfied in all material respects all of the conditions on its their part to be performed or satisfied at or prior to the date hereofClosing Time or such Date of Delivery, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered its subsidiaries taken as one enterprise, except transactions entered into in the ordinary course of businessa whole, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprisea whole, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiarya whole, or (fE) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Properties which has been sustained or will have been sustained which, individually or in the aggregate, has which could reasonably be expected to have a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qm) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably requesthave requested prior to the date hereof.
(r) (An) The Merger Agreement effecting the First Merger and the Second Merger Articles Supplementary shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary filed and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined accepted by the Company and reasonably acceptable to the RepresentativeSDAT.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement and Power of Attorney, in each case, on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, (ii) the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective obligations hereunder, hereunder and under the Custody Agreement and Power of Attorney and (iii) the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer, Brown, K▇▇▇▇▇▇▇ & Maw E▇▇▇▇ LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery Option Closing Time and in form and substance reasonably satisfactory to Akin Gump S▇▇▇▇▇▇ H▇▇▇▇ & F▇▇▇ LLP, counsel for the Underwriters, in substantially to the effect set forth on form attached hereto as Exhibit B hereto.C.
(b) The Company Each Selling Stockholder marked with an asterisk on Schedule I shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time, as applicable, an opinion of Mayercounsel for such Selling Stockholder and its affiliates, Brownaddressed to the Underwriters and dated the Closing Time and each Option Closing Time, as applicable, and in form and substance reasonably satisfactory to Akin Gump S▇▇▇▇▇▇ H▇▇▇▇ & Maw F▇▇▇ LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated in substantially the Closing Time and substantially to the effect set forth on form attached hereto as Exhibit C hereto.D.
(c) The Company shall furnish to On the Underwriters date of this Agreement and at the Closing Time and on each Date of Delivery an opinion of Option Closing Time (if applicable), the Representative shall have received from G▇▇▇▇ ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, ▇ LLP letters dated the Closing Time respective dates of delivery thereof and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company and the Subsidiariesother members of the Company Group included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three (3) business days prior to such Closing Time or such Option Closing Time, as the case may be. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hd) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of Akin Gump S▇▇▇▇▇▇ & ▇▇▇H▇▇▇▇ & F▇▇▇ LLP, counsel to the Underwriters, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writingwriting prior to its filing unless such objection has been withdrawn.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rulerule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change Effect, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiariesits subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing inclusion in the NYSENasdaq.
(nk) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative shall have received lock-up agreements from each officeras set forth in Section 4(A)(t).
(m) The Company shall have delivered to the Underwriters a certificate, director, and 1% or greater stockholder executed by the Secretary of the Company and Aames Financial Idated as of the Closing Time and each Option Closing Time (if any) as to (i) the resolutions adopted by the Company’s board of directors in form and substance reasonably acceptable to the Representative, in (ii) the form Company’s certificate of Exhibit A attached heretoincorporation, as amended and such letter agreements shall be in full force and effect; provided(iii) the Company’s bylaws, howeveras amended, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (each as in effect on at the date hereof) Closing Time and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreementeach Option Closing Time (if any).
(pn) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part : [substance to be performed or satisfied at or prior to the date hereofagreed upon];
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qo) The Company and each Transaction Partythe Selling Stockholders, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in (i) the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, (ii) the representations, warranties and statements of the Company contained herein, (iii) the representations, warranties and statements of the Selling Stockholders contained herein and in the Custody Agreement and Power of Attorney, (iv) the performance by the Company and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, (v) and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters each Underwriter hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Selling Stockholders on the date hereof and hereof, at the Closing Time and on each Date of Deliveryany Secondary Closing Time, as applicable, (ii) the accuracy of the statements of the Company’s officers and the Selling Stockholders made in any certificate pursuant to the provisions hereof as of the date of such certificate, (iii) the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of all of their respective covenants and other obligations hereunderhereunder in all material respects, and the satisfaction of (iv) the following further conditions at the Closing Time or on each Date of Delivery, as applicableother conditions:
(a) The Company shall furnish have furnished to the Underwriters at Representatives on the Closing Time Date and on each Date any Secondary Closing Date, as applicable, the opinion and negative assurance letter of Delivery an opinion of Mayer, Brown, Eversheds ▇▇▇▇▇▇▇▇▇▇ & Maw (US) LLP, counsel for to the Company, addressed to the Subsidiaries Underwriters and each dated the Closing Date and any Secondary Closing Date, as applicable, in substantially the form attached hereto as Exhibit C. Such opinion and negative assurance letter shall indicate that they are being rendered to the Underwriters pursuant to the terms of this Agreement.
(b) The Underwriters shall have received from Ernst & Young LLP (i) on the other Aames Transaction Partiesdate hereof, which opinion(sa “comfort” letter dated the date hereof, and (ii) on the Closing Date, a “bring down” comfort letter, dated the Closing Date and any Secondary Closing Date, as applicable, relating to the matters covered in the comfort letter referred to in clause (i) above. Each comfort letter shall be addressed to the Underwriters and the board of directors of the Company and shall be in form and substance reasonably satisfactory to the Underwriters.
(c) The Underwriters shall have received on the Closing Date and any Secondary Closing Date, as applicable, a favorable opinion and negative assurance letter of Dechert LLP, counsel to the Underwriters, dated the Closing Time Date and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the any Secondary Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction PartiesDate, as to certain tax mattersapplicable, which opinion shall be addressed in form and substance satisfactory to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company Underwriters shall furnish to the Underwriters at have received on the Closing Time and on each Date of Delivery an a favorable opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal Winston & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the UnderwritersSelling Stockholders, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativeDate, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration StatementUnderwriters.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(i) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(je) Prior to the Closing Time and each Date of Delivery any Secondary Closing Date, as applicable, (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred; , and (ii) all requests for additional information on neither the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus Disclosure Package nor the S-4 Final Prospectus, together with any amendments or supplements thereto, or any modifications thereof, shall contain an untrue statement of a material fact or 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 are made, not misleading.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lf) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery and any Secondary Closing Date, as applicable, (i) there shall not have been any no event, circumstance or change constituting a Material Adverse Change and Effect shall have occurred or become known, (ii) no transaction which is material and unfavorable to the Company and its Subsidiaries, taken as a whole, shall have been entered into by the Company or any Subsidiary that has not been fully and accurately disclosed in both the Disclosure Package and the Final Prospectus, as modified by any amendment or supplement thereto, and (iii) no order or decree preventing the use of any of the SubsidiariesPreliminary Prospectus, in each casethe Disclosure Package or the Final Prospectus, which in the Representative’s sole judgmentor any amendment or supplement thereto, makes it impracticable or inadvisable to proceed with the public offering any order asserting that any of the Shares as transactions contemplated by this Agreement are subject to the Registration Statementregistration requirements of the Securities Act shall have been issued.
(mg) The Company shall have delivered to the Representatives a certificate, dated the Closing Date and any Secondary Closing Date, as applicable, executed by the secretary of the Company on behalf of the Company, as to (i) the resolutions adopted by the Company’s board of directors in form and substance reasonably acceptable to the Representatives, (ii) the Charter Documents, each as in effect as of the Closing Date.
(h) The Company shall have delivered to the Representatives a certificate, dated the Closing Date and any Secondary Closing Date, as applicable, executed by its chief executive officer and chief financial officer, to the effect that: (i) the representations and warranties of the Company set forth in this Agreement are true and correct as of the Closing Date and any Secondary Closing Date, as applicable, as though made on and as of such date (except to the extent that such representations and warranties speak as of another date, in which case such representations and warranties shall be true and correct as of such other date); (ii) the conditions set forth in Section 7(e) and Section 7(f) hereof shall have been satisfied and be true and correct as of the Closing Date and any Secondary Closing Date, as applicable; (iii) the Company has complied with all covenants and agreements and satisfied all conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date and any Secondary Closing Date, as applicable; and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to their knowledge, threatened.
(i) Each Selling Stockholder shall have delivered to the Representatives a certificate, dated the Closing Date, to the effect that: (i) the representations and warranties of such Selling Stockholder set forth in this Agreement and in the Custody Agreement and Power of Attorney are true and correct as of the Closing Date as though made on and as of such date (except to the extent that such representations and warranties speak as of another date, in which case such representations and warranties shall be true and correct as of such other date); and (ii) such Selling Stockholder has complied with all covenants and agreements and satisfied all conditions on its part to be performed or satisfied under this Agreement and the Custody Agreement and Power of Attorney at or prior to the Closing Date.
(j) If any Selling Stockholder is not a U.S. person for U.S. federal income tax purposes, the Company shall have delivered to the Representative, on or before the Closing Date, (A) a certificate with respect to the Company’s status as a “United States real property holding corporation,” dated not more than 30 days prior to the Closing Date, as described in Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), and (B) proof of delivery to the IRS of the required notice, as described in Treasury Regulations 1.897-2(h)(2).
(k) The Shares to be delivered on the Closing Date or Secondary Closing Date, as the case may be, shall have been approved for listing on the Nasdaq Global Select Market, subject to official notice of issuance.
(l) The Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the Securities Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Securities Act; the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any part thereof or the Prospectus or any part thereof or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission or any state securities commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction.
(m) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or the Secondary Closing Date, as the case may be, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any downgrading, (ii) any intended or potential downgrading, or (iii) any review or possible change that does not indicate an improvement, in the NYSErating accorded any securities of or guaranteed by the Company or any Subsidiary by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(n) The NASD Common Stock has been registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act, nor has the Company received any notification that the Commission or is contemplating terminating such registration.
(o) FINRA shall have confirmed that it has not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreementconditions.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters Representatives such other documents and certificates as to the accuracy and completeness of any statement in both the Registration Statement Disclosure Package and the Final Prospectus, the representations, warranties and statements of the Company contained hereinor any amendment or supplement thereto, and any additional matters as the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or thereinRepresentatives may reasonably request, as of the Closing Time and any Secondary Closing Time, as applicable.
(q) The Selling Stockholders shall have furnished to the Representatives such other documents and certificates as to the accuracy and completeness of any statement in both the Disclosure Package and the Final Prospectus, or any Date amendment or supplement thereto, in respect of Delivery, the Selling Stockholder Information and any additional matters as the Underwriters Representatives may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time
(r) At the date of this Agreement, the First Merger Representatives shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, received an executed “lock-up” agreement substantially in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) form attached hereto as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined Exhibit B signed by the Company and reasonably acceptable to the Representativepersons set forth on Schedule D hereto.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Operating Partnership in Section 3 hereof, in each case on the date hereof and at the Closing Time and on each Date of Delivery, as if made on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, to the performance in all material respects by the Company and the Transaction Parties Operating Partnership of their respective obligations hereunder, hereunder to be performed at or prior to the Closing Time and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion and letter of Mayer, Brown, ▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇▇ LLP, corporate counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to the effect Delivery, as set forth on Exhibit in Exhibits A and B hereto, respectively.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as set forth in Exhibit C hereto.
(c) On the case may bedate of this Agreement and at the Closing Time and each Date of Delivery (if applicable), the Representative shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated the respective dates of delivery thereof and addressed to the Representative, in form and substance satisfactory to the RepresentativeUnderwriters, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Financial Statements and certain financial statements, including any pro forma financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Date of Delivery (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Date of Delivery, decreases in total assets or retained earnings or increases in borrowingsas the case may be.
(d) The Underwriters shall have received at the Closing Time and on each Date of Delivery (i) an opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, it shall be a further condition to counsel for the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company Underwriters, as to the significance thereof, unless the Representative deems such explanation unnecessarycertain federal income tax matters, and (Bii) such changesan opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, decreases or increases do notcounsel for the Underwriters, as to certain matters under the Investment Company Act, addressed to the Underwriters and dated the Closing Time and each Date of Delivery, as set forth in Exhibits D and E hereto, respectively. In addition, the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative Underwriters shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Time or such and each Date of Delivery, addressed to the Representative Underwriters and in form and substance satisfactory to the Representative.
(ie) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Representative shall have reasonably objected in writingwriting prior to the filing thereof.
(jf) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all reasonable requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingRepresentative.
(kg) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Delivery, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementProspectus and the Disclosure Package.
(mi) The Shares shall have been approved for listing in on the NYSE, subject to notice of issuance.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(oj) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shallreceived, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman two of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableCompany’s executive officers, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or such Date of Delivery, as applicable, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements of their respective obligations hereunder and satisfied in all material respects all of the conditions on its their part to be performed or satisfied at or prior to the date hereofClosing Time or such Date of Delivery, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered its subsidiaries taken as one enterprise, except transactions entered into in the ordinary course of businessa whole, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprisea whole, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiarya whole, or (fE) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Properties which has been sustained or will have been sustained which, individually or in the aggregate, has which would reasonably be expected to have a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qk) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may have reasonably requestrequested prior to the date hereof.
(r) (Al) The Merger Agreement effecting the First Merger and the Second Merger Articles Supplementary shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary filed and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined accepted by the Company and reasonably acceptable to the RepresentativeSDAT.
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Conditions of the Underwriters’ Obligations. The obligations of ------------------------------------------- the Underwriters Underwriter hereunder to purchase Shares at the Closing Time or on each the Date of Delivery, as applicable, are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder in all material respects on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, (ii) the performance by the Company of its obligations hereunder in all material respects by the Company and the Transaction Parties of their respective obligations hereunderrespects, and (iii) to the satisfaction of the following further conditions at the Closing Time or on each the Date of Delivery, as applicable:
(a) The Company shall furnish If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Underwriters Registration Statement to be declared effective by the Commission before the offering of the Shares may commence, such post-effective amendment shall have been declared effective by the Commission not later than 5:30 p.m., New York City time, on the date hereof, or at such later date and time as shall be reasonably consented to in writing by the Underwriter, which consent shall not be unreasonably withheld or delayed;
(b) The Underwriter shall have received at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, O'Melveny & ▇▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriter and dated the Closing Time and each Date of Delivery and substantially to in the effect set forth on form attached hereto as Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.C;
(c) The Company Underwriter shall furnish to the Underwriters have received at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Underwriter and dated the Closing Time and each Date of Delivery and substantially to in the effect set forth on form attached hereto as Exhibit D hereto.D;
(d) The Company Underwriter shall furnish to the Underwriters have received at the Closing Time and on each Date of Delivery an opinion of O'Melveny & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇LLP, ▇▇., Esq., tax counsel for the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, Underwriter and dated the Closing Time and each Date of Delivery and substantially to in the effect set forth on form attached hereto as Exhibit E hereto.E;
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative Underwriter shall have received from Ernst Deloitte & Young LLP Touche, LLP, letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativeUnderwriter, in form and substance reasonably satisfactory to the RepresentativeUnderwriter, relating to the financial statements, including any pro forma financial statements, statements of the Company and the SubsidiariesCompany, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be offerings of a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.similar nature;
(hf) The Representative Underwriter shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Manatt, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇, LLP, counsel to the Underwriter, dated the Closing Time or such Date of Delivery, addressed to the Representative Underwriter and in form and substance satisfactory to the Representative.Underwriter;
(ig) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters Underwriter shall have reasonably objected in writing.;
(jh) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issuedissued and outstanding, and no proceedings for such purpose shall have been initiated or threatened, threatened by the CommissionCommission and remain unresolved, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred; has occurred and remain unresolved, (ii) all requests for additional information on the part Registration Statement shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the Commission shall have been complied with; statements therein not misleading, and (iii) none of the Registration Statement, the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.;
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any no Material Adverse Change and Effect of the Company shall occur or become known (whether or not arising in the ordinary course of business) or that makes it, in the reasonable judgment of the Underwriter, impracticable to market the Shares in the manner contemplated in the Prospectus, or (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.Company;
(mj) The At the Closing Time, the Shares shall have been approved for listing in listing, upon official notice of issuance, on the NYSE.American Stock Exchange;
(nk) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements., which objection has not been resolved to the reasonable satisfaction of the NASD;
(ol) The Representative Underwriter shall have received lock-up agreements from each officerperson listed on Schedule I attached hereto, director, and 1% or greater stockholder of the Company and Aames Financial I, substantially in the form of ---------- Exhibit A attached hereto, and such letter lock-up agreements shall be in full force and effect; provided, however, that ;
(m) The Manager shall have furnished the Underwriter the letter agreement with SFP may permit SFP to exercise its demand registration rights under substantially in the Registration Rights form of Exhibit B attached hereto (the "Manager's Representation Letter") and Governance Agreement (the representations and warranties in the Manager's Representation Letter shall be accurate in all material respects as in effect on of the date hereof) , the Closing Time and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) on each Date of this Agreement.Delivery;
(pn) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of Delivery, deliver to the Underwriters Underwriter a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, two principal executive officers to the effect that:
(i) , to each of such officer's knowledge, the representations and warranties of the Company and the Transaction Parties set forth in this Agreement are true and correctcorrect in all material respects, as if made on the conditions set forth in paragraphs (i) and as of the date hereof(k) have been satisfied in all material respects, and the Company and each Aames Transaction Party has complied performed in all material respects with all the agreements and satisfied its obligations under this Agreement, in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofeach case as of such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qo) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters Underwriter such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, Delivery as the Underwriters Underwriter may reasonably request.; and
(rp) (A) The Merger Agreement effecting All filings with the First Merger and Commission required by Rule 424 under the Second Merger Securities Act Regulations shall have been duly authorized made within the applicable time period proscribed for such filing by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreementsuch Rule.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Initial Closing Time or on each Date of Deliveryat the Option Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Initial Closing Time and on each Date of Deliveryat the Option Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective its obligations hereunder, hereunder and the satisfaction (or waiver by the Representatives) of the following further conditions at the Initial Closing Time or on each Date of Deliveryat the Option Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters Representatives at the Initial Closing Time and on each Date at the Option Closing Time opinions of Delivery an opinion of Mayer, Brown, Hunton & ▇▇▇▇▇▇▇▇ & Maw LLP, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Initial Closing Time and each Date of Delivery and substantially to the effect Option Closing Time, as set forth on Exhibit B heretoSchedule VI.
(b) The Company shall furnish to the Underwriters Representatives at the Initial Closing Time and on each Date of Delivery at the Option Closing Time an opinion of Mayerthe Company’s Vice President, BrownGeneral Counsel and Corporate Secretary, ▇▇▇▇ & Maw LLPaddressed to the Representatives, special tax dated the Initial Closing Time and Option Closing Time and otherwise in form and substance satisfactory to DLA Piper LLP (US), counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect stating as set forth on Exhibit C heretoSchedule VII.
(c) [Intentionally omitted.]
(d) The Company Representatives shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇have received from McGladrey & ▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Initial Closing Time and each Date of Deliverythe Option Closing Time, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating to the financial statements, including any pro forma financial statements, of the Company and the SubsidiariesCompany, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative Representatives shall have received at the Initial Closing Time and on each Date of Delivery the Option Closing Time the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPDLA Piper LLP (US), dated the Initial Closing Time or such Date of Deliveryand Option Closing Time, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(if) No amendment or supplement to the Registration Statement Statement, the Disclosure Package or the Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jg) Prior to the Initial Closing Time and each Date of Delivery the Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 cease-and-desist order in connection with the public offering of the Shares or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Disclosure Package and the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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.
(kh) All filings with the Commission required by Rule 424 under of the Securities Act Regulations to have been filed by the Initial Closing Time shall have been made within the applicable time period prescribed for such filing by such Rulerule (without reliance on Rule 424(b)(8) of the Securities Act Regulations).
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(oj) [Intentionally omitted.]
(k) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% at or greater stockholder of before the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Initial Closing Time and on each Date of Deliveryat the Option Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Company’s Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicablein each case on behalf of the Company and not individually, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement that are not qualified by materiality or Material Adverse Effect are true and correctcorrect in all material respects and those representations and warranties of the Company in this Agreement that are qualified by materiality or Material Adverse Effect are true and correct in all respects, as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has complied with all the agreements in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofof such certificate;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or or, to such officer’s knowledge, threatened under the Securities Act;; and
(iii) when the Registration Statement Statement, at its initial effective date, the filing date of the Company’s Annual Report on Form 10-K for the year ended December 31, 2009, and S-4 became any subsequent effective date in connection with the Shares did not, the Disclosure Package, as of the Initial Sale Time and at all times subsequent thereto up to the date hereofof such certificate, the Registration Statement did not and does not, and the Prospectus, as of its date and the S-4 and any amendments or supplements to any date of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themsuch certificate, did not and do does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations obligation of the Underwriters hereunder Underwriter to purchase Shares at and pay for the Closing Time or on each Date of Delivery, as applicable, are Class C Certificates pursuant to this Agreement is subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters at On the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the CompanyDate, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative Underwriter shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time opinions and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion negative assurance statement of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, outside counsel for the Company and Parent Guarantor, dated the Closing Time or such Date of Delivery, and addressed to the Representative and Underwriter, in form and substance reasonably satisfactory to the RepresentativeUnderwriter.
(ib) No amendment or supplement On the Closing Date, the Underwriter shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (US) LLP, regulatory counsel of the Company and the Parent Guarantor, dated the Closing Date and addressed to the Registration Statement or Prospectus shall have been filed Underwriter, in form and substance reasonably satisfactory to which the Underwriters shall have objected in writingUnderwriter.
(jc) Prior On the Closing Date, the Underwriter shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for Wilmington Trust Company, individually and as the Loan Trustee, Subordination Agent and Trustee, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter.
(d) On the Closing Time Date, the Underwriter shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Escrow Agent, dated the Closing Date, in form and each Date substance reasonably satisfactory to the Underwriter.
(e) On the Closing Date, the Underwriter shall have received an opinion of Delivery in-house counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(if) no stop order suspending On the effectiveness Closing Date, the Underwriter shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇ LLP, special New York counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter.
(g) On the Closing Date, the Underwriter shall have received an opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriter, dated as of the Registration Statement or S-4 or any order preventing or suspending Closing Date and addressed to the use of any Preliminary Prospectus or Prospectus has been issuedUnderwriter, with respect to the issuance and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension sale of the qualification of the Shares for offering or sale in any jurisdictionCertificates, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Time of Sale Prospectus, the Prospectus nor and other related matters as the S-4 shall contain an untrue statement of a material fact or 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 misleadingUnderwriter may reasonably require.
(kh) All filings with Subsequent to the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution and delivery of this Agreement and prior to the Closing Time or the relevant Date of Delivery Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any Material Adverse Change and intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company, the Parent Guarantor or any of their respective subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) no transaction which there shall not have occurred any change, or any development reasonably likely to involve a change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company, the Parent Guarantor and their respective subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in the Underwriter’s judgment, is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiariesadverse and that makes it, in each case, which in the RepresentativeUnderwriter’s sole judgment, makes it impracticable or inadvisable to proceed with the completion of the public offering of the Shares as Class C Certificates on the terms and in the manner contemplated by the Registration StatementStatement and the Time of Sale Prospectus.
(mi) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Underwriter shall have received lock-up agreements from each on the Closing Date (i) a certificate dated the Closing Date and signed by an executive officer of the Company, in such officer, director, and 1% or greater stockholder ’s capacity as an officer of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by Company’s behalf, to the Company under the Securities Act so long as such registration statement complies with the restrictions thereon effect set forth in Section 4(q)(E3(h)(i) of this Agreement.
(p) The Company above and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
: (i1) the representations and warranties of the Company and the Transaction Parties contained in this Agreement are true and correct, as if made on and correct as of the date hereof, Closing Date and (2) the Company and each Aames Transaction Party has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to before the date hereof;
Closing Date and (ii) no stop order suspending a certificate dated the effectiveness Closing Date and signed by an executive officer of the Registration Statement Parent Guarantor, in such officer’s capacity as an officer of the Parent Guarantor and on the Parent Guarantor’s behalf, to the effect set forth in Section 3(h)(i) above and to the effect that: (1) the representations and warranties of the Parent Guarantor contained in this Agreement are true and correct as of the Closing Date and (2) the Parent Guarantor has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or any post-effective amendment thereto satisfied hereunder on or before the S-4Closing Date. Each of the officers signing and delivering the respective certificates contemplated in clauses (i) and (ii) may rely upon the best of his or her knowledge as to proceedings threatened.
(j) You shall have received from KPMG LLP (i) a letter, dated no later than the date hereof and no order directed at any document addressed to the Underwriter, in form and substance satisfactory to the 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 included or incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when in the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofStatement, the Registration Statement Time of Sale Prospectus and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) a letter, dated the Closing Date and (iv) above, may limit certification of the matters set forth in subclause (i) above addressed to the representationsUnderwriter, warranties and agreements which meets the above requirements, except that the specified date therein referring to certain procedures performed by KPMG LLP will not be a date more than three business days prior to the Closing Date for purposes of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPsubsection.
(qk) The Company and each Transaction Party, as applicable, Each of the Appraisers shall have furnished to the Underwriters Underwriter a letter from such other documents and certificates as Appraiser, addressed to the accuracy and completeness of any statement in Company, the Registration Statement Parent Guarantor and the ProspectusUnderwriter and dated the Closing Date, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties Parent Guarantor or any of their respective covenants contained herein and thereinaffiliates, and (ii) does not have any substantial interest, direct or indirect, in the fulfillment of any conditions contained herein or thereinCompany, as of the Closing Time Parent Guarantor or any Date of Deliverytheir respective affiliates and (iii) is not connected with the Company, the Parent Guarantor or any of their respective affiliates as the Underwriters may reasonably requestan officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(rl) At the Closing Date, each of the Operative Agreements (A) The Merger other than the Assignment and Assumption Agreement effecting the First Merger and the Second Merger Financing Agreements relating to Aircraft that have not yet been delivered to the Company) shall have been duly authorized executed and delivered by all necessary corporate action on the part each of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreementparties thereto.
(sm) All outstanding optionsOn the Closing Date, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I the Class C Certificates shall have been terminated or shall otherwise cease to be outstandingreceived the ratings indicated in the free writing prospectus identified as Item 1 in Schedule IV hereto from the nationally recognized statistical rating organizations named therein.
(tn) None of SFP or any of its affiliates, The Underwriter shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under received on the Closing Date a certificate dated the Closing Date, signed by an executive officer of the Parent Guarantor and in accordance form and substance reasonably satisfactory to the Underwriter, with Section 262 respect to the accuracy of certain statistical information included or incorporated by reference in the Delaware General Corporation LawTime of Sale Prospectus and the Prospectus.
(uo) SFP On the Closing Date, the representations and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor warranties of the approval Depositary contained in this Agreement shall be true and correct as if made on the Closing Date (except to the extent that they relate solely to an earlier date, in which case they shall be true and correct as of the Mergers and such earlier date).
(Bp) against any action, proposal The Company shall have obtained a Ratings Confirmation (including any Superior Proposal, as such term is defined in the Merger Intercreditor Agreement), transaction or agreement that would have the effect of preventing or delaying the closing ) in respect of the Second Merger, Class A Certificates and the unwinding of either of the Mergers or the consummation of the transactions contemplated by this AgreementClass B Certificates.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Initial Closing Time or on each Date of Deliveryat the Option Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof hereof, at the Initial Closing Time and at the Option Closing Time and on each Date of DeliveryTime, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective its obligations hereunder, hereunder and the satisfaction (or waiver by the Representative) of the following further conditions at the Initial Closing Time or on each Date of Deliveryat the Option Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters Representative at the Initial Closing Time and on each Date at the Option Closing Time opinions of Delivery an opinion of Mayer, Brown, Hunton & W▇▇▇▇▇▇▇ & Maw LLP, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Representative and dated the Initial Closing Time and each Date of Delivery and substantially to the effect Option Closing Time, as set forth on Exhibit B heretoSchedule VI.
(b) The Company shall furnish to the Underwriters Representative at the Initial Closing Time and on each Date of Delivery at the Option Closing Time an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company’s Vice President, the Subsidiaries General Counsel and each of the other Aames Transaction PartiesCorporate Secretary, as to certain tax matters, which opinion shall be addressed to the UnderwritersRepresentative, dated the Initial Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be otherwise in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPDLA Piper LLP (US), counsel for the Underwriters, stating as set forth on Schedule VII. Counsel may call attention to the fact that, in connection with the delivery of its opinion, counsel has not ordered or reviewed judgment, lien or any other searches of public or private records of the Company or its properties.
(gc) [Intentionally omitted.]
(d) [Intentionally omitted.]
(e) The Representative shall have received from Ernst & Young McGladrey, LLP letters dated, respectively, as of the date of this Agreement, the Initial Closing Time and each Date of Deliverythe Option Closing Time, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the SubsidiariesCompany, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hf) The Representative shall have received at the Initial Closing Time and on each Date of Delivery the Option Closing Time the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPDLA Piper LLP (US), dated the Initial Closing Time or such Date of Deliveryand Option Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(ig) No amendment or supplement to the Registration Statement Statement, the Disclosure Package or the Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jh) Prior to the Initial Closing Time and each Date of Delivery the Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 cease-and-desist order in connection with the public offering of the Shares or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Disclosure Package and the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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.
(ki) All filings with the Commission required by Rule 424 under of the Securities Act Regulations to have been filed by the Initial Closing Time shall have been made within the applicable time period prescribed for such filing by such Rulerule (without reliance on Rule 424(b)(8) of the Securities Act Regulations).
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ok) The Representative shall have received lock-up executed lockup agreements from each officer, director, of the executive officers and 1% or greater stockholder directors of the Company and Aames Financial I, substantially in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this AgreementSchedule VIII.
(pl) The Company and each Transaction Party shall, Representative shall have received at or before the Initial Closing Time and on each Date of Deliveryat the Option Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Company’s Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicablein each case on behalf of the Company and not individually, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement that are not qualified by materiality or Material Adverse Effect are true and correctcorrect in all material respects and those representations and warranties of the Company in this Agreement that are qualified by materiality or Material Adverse Effect are true and correct in all respects, as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has complied with all the agreements in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofof such certificate;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or or, to such officer’s knowledge, threatened under the Securities Act;; and
(iii) when the Registration Statement Statement, at its initial effective date, the filing date of the Company’s Annual Report on Form 10-K for the year ended December 31, 2012, and S-4 became any subsequent effective date in connection with the Shares did not, the Disclosure Package, as of the Initial Sale Time and at all times subsequent thereto up to the date hereofof such certificate, the Registration Statement did not and does not, and the Prospectus, as of its date and the S-4 and any amendments or supplements to any date of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themsuch certificate, did not and do does not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters Underwriter hereunder to purchase and pay for the Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Operating Partnership in Section 3 hereof, in each case on the date hereof and at the Closing Time and on each Date of Delivery, as if made on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, to the performance in all material respects by the Company and the Transaction Parties Operating Partnership of their respective obligations hereunder, hereunder to be performed at or prior to the Closing Time and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters Underwriter at the Closing Time and on each Date of Delivery an opinion and letter of Mayer, Brown, ▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇▇ LLP, corporate counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriter and dated the Closing Time and each Date of Delivery and substantially to the effect Delivery, as set forth on Exhibit in Exhibits A and B hereto, respectively.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters Underwriter at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Underwriter and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as set forth in Exhibit C hereto.
(c) On the case may bedate of this Agreement and at the Closing Time and each Date of Delivery (if applicable), the Underwriter shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated the respective dates of delivery thereof and addressed to the RepresentativeUnderwriter, in form and substance satisfactory to the RepresentativeUnderwriter, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriter and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Financial Statements and certain financial statements, including any pro forma financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Date of Delivery (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Date of Delivery, decreases in total assets or retained earnings or increases in borrowingsas the case may be.
(d) The Underwriter shall have received at the Closing Time and on each Date of Delivery (i) an opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, it shall be a further condition to counsel for the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company Underwriter, as to the significance thereof, unless the Representative deems such explanation unnecessarycertain federal income tax matters, and (Bii) such changesan opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, decreases or increases do notcounsel for the Underwriter, as to certain matters under the Investment Company Act, addressed to the Underwriter and dated the Closing Time and each Date of Delivery, as set forth in Exhibits D and E hereto, respectively. In addition, the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative Underwriter shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the underwriters, dated the Closing Time or such and each Date of Delivery, addressed to the Representative Underwriter and in form and substance satisfactory to the RepresentativeUnderwriter.
(ie) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Underwriter shall have objected in writingwriting prior to the filing thereof.
(jf) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all reasonable requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingUnderwriter.
(kg) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Delivery, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the RepresentativeUnderwriter’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementProspectus and the Disclosure Package.
(mi) The Shares shall have been approved for listing in on the NYSE, subject to notice of issuance.
(nj) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Underwriter shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, substantially in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed F hereto signed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth persons listed in Section 4(q)(E) of this AgreementSchedule III hereto.
(pk) The Company and each Transaction Party shallUnderwriter shall have received, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman two of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableCompany’s executive officers, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or such Date of Delivery, as applicable, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements of their respective obligations hereunder and satisfied in all material respects all of the conditions on its their part to be performed or satisfied at or prior to the date hereofClosing Time or such Date of Delivery, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered its subsidiaries taken as one enterprise, except transactions entered into in the ordinary course of businessa whole, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprisea whole, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiarya whole, or (fE) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Properties which has been sustained or will have been sustained which, individually or in the aggregate, has which would reasonably be expected to have a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(ql) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters Underwriter such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may Underwriter has reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable requested prior to the Representativedate hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the respective representations and warranties on the part of the Company and the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement and Power of Attorney, applicable, on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective obligations hereunderhereunder and under the Custody Agreement and Power of Attorney, as applicable, and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish or cause to be furnished to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Option Closing Time the opinion and each Date negative assurance letter of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, M▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the Underwriters and dated the Closing Time and each Option Closing Time, substantially in the form of Exhibit C-1 hereto. In addition, the Company shall furnish or caused to be furnished to the Underwriters at the Closing Time and on each Option Closing Time the opinion of M▇▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ LLP, tax counsel for the Company, regarding certain U.S. federal income tax matters, addressed to the Underwriters and dated the Closing Time and on each Option Closing Time, substantially in the form of Exhibit C-2 hereto.
(b) The Selling Stockholders shall furnish to the Underwriters at the Closing Time an opinion of Sidley Austin LLP and certain special counsel, or such other counsel acting on behalf of the Selling Stockholders, reasonably acceptable to the Representatives, addressed to the Underwriters substantially in the forms set forth in Exhibit D-1 and Exhibit D-2 respectively, hereto.
(c) The Underwriters shall have received at the Closing Time a favorable opinion and negative assurance letter from Hunton & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Time, in form and substance satisfactory to the Underwriters.
(gd) The Representative Underwriters shall have received from Ernst & Young M▇▇▇ A▇▇▇▇ LLP letters a “comfort” letter dated, respectively, as of the date of this Agreement, hereof and the Closing Time and on each Date of Delivery, as the case may beOption Closing Time, addressed to the RepresentativeRepresentatives, in substantially the form attached as Exhibit E-1 hereto and substance satisfactory an “Agreed Upon Procedures” report dated as of the date hereof and the Closing Time and on each Option Closing Time addressed to the Representative, relating to Representatives in substantially the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offeringssame form attached as Exhibit E-2 hereto. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative Representatives deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the RepresentativeRepresentatives, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jf) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or any prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the RepresentativeRepresentatives’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mi) The Shares shall have been approved for listing in on the NYSE.
(nj) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ok) The Representative Representatives shall have received lock-up agreements from each officer, director, Selling Stockholder and 15% or greater stockholder of the Company and Aames Financial ICompany, in the form of Exhibit A B attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pl) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of themthereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and the Registration Statement, the S-4Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any an untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses .
(iim) and Each Selling Stockholder (iv) above, may limit certification or one or more attorneys on behalf of the matters set forth in subclause Selling Stockholders) will, at the Closing Time, deliver to the Underwriters a certificate, to the effect that:
(i) above to the representations, representations and warranties and agreements of SFP such Selling Stockholder set forth in this Agreement and may limit certification in the Custody Agreement and may limit certification Power of Attorney are true and correct as of such date; and
(ii) such Selling Stockholder has complied with all the matters set forth in subclause (iii) above agreements and satisfied all the conditions on its part to informationbe performed or satisfied hereunder and under the Custody Agreement and Power of Attorney, facts and events relating as applicable at or prior to SFPsuch date.
(qn) The Company and each Transaction Partythe Selling Stockholders, as applicable, applicable shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained hereinherein and in the Custody Agreement and Power of Attorney, and the performance by the Company and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(ro) (A) The Merger Agreement effecting Each of the First Merger Selling Stockholders shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Prospectus and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction PartyDisclosure Package relating to such Selling Stockholder’s Selling Stockholder Information, as applicable; (B) , the respective representations, warranties and statements of such Selling Stockholder contained herein and in the Custody Agreement and Power of Attorney, as applicable, and the performance by such Selling Stockholder of such Selling Stockholder’s covenants contained herein and therein, as applicable, and the fulfillment of any conditions contained herein or therein, as applicable, as of the Closing Time, as the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this AgreementUnderwriters may reasonably request.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder in all material respects on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance by the Company of its obligations hereunder in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company Representative shall furnish to the Underwriters at have received, dated as of the Closing Time and on each Date of Delivery Option Closing Time, an opinion of MayerManatt, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇, LLP (which may rely upon the opinion of DLA Piper US LLP to the extent any opinion thereunder pertains to Maryland law) and DLA Piper US LLP, as counsel for Underwriters.the Company and the Subsidiaries, addressed to the Underwriters in substantially the forms attached hereto as Exhibit A.
(gb) The Representative shall have received signed copies of opinions addressed to the Company from Ernst & Young DLA Piper US LLP substantially in the form of Exhibit 5.1 to the Registration Statement.
(c) On the date of this Agreement and at the Closing Time and each Option Closing Time (if applicable), The Representative shall have received from BDO ▇▇▇▇▇▇▇, LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of DeliveryOption Closing Time, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the SubsidiariesSubsidiaries included or incorporated by reference in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Option Closing Time, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to as the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statementcase may be.
(hd) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jf) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurredoccurred and, in any such instance, not been waived by the Commission; and (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, neither the Prospectus nor the S-4 Disclosure Package shall contain an untrue statement of a material fact or 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.
(kg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rulerule.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Option Closing Time (i) there no material and adverse change in the assets, business, operations, earnings, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole shall occur or become known (whether or not have been any Material Adverse Change arising in the ordinary course of business), and (ii) no transaction which is material and unfavorable adverse to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mi) The Shares shall have been approved for listing inclusion in the NYSE.
(nj) If the issuance and sale of the Initial Shares and/or Option Shares to the Underwriters will result in the Underwriters individually or in the aggregate exceeding the Aggregate Stock Ownership Limit (as defined in the Amended Articles of Incorporation of the Company as of the date hereof) with respect to the Company’s capital stock, then, on or prior to the Closing Time, the Underwriters shall have received from the Company’s Board of Directors a waiver or exemption from the Aggregate Stock Ownership Limit with respect to the issuance and sale of such Shares, in form and substance reasonably satisfactory to the Underwriters (and the Underwriters acknowledge having received such a waiver with respect to ▇▇▇▇▇ ▇▇▇▇▇▇▇ and certain of his family members).
(k) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsarrangements between the date of this Agreement and the Closing Time or the Option Closing Time, as applicable.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pl) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, President and Chief Executive Officer, President, Chief Operating Officer or and its Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) , to each of such officer’s knowledge, the representations and warranties of the Company and the Transaction Parties set forth in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied correct in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
paragraphs (iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Changef), (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (iih) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representationshave been satisfied, warranties and agreements in each case as of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPsuch date.
(qm) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the Prospectus, the representations, warranties and statements of the Company contained hereinDisclosure Package, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, Option Closing Time as the Underwriters may reasonably request.
(r) (An) The Merger Agreement effecting the First Merger and the Second Merger Company shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill performed its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease Agreement as are to be outstanding.
(t) None of SFP performed by the terms hereof at or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following before the Closing Time and pursuant to such other terms as are determined by or the Company and reasonably acceptable to the Representativerelevant Option Closing Time.
Appears in 1 contract
Sources: Underwriting Agreement (Anworth Mortgage Asset Corp)
Conditions of the Underwriters’ Obligations. (a) The obligations of the Underwriters hereunder to purchase Shares at on the First Closing Time Date or on each Date of DeliveryOption Closing Date, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at on the First Closing Time Date and on each Date of DeliveryOption Closing Date, as applicable, the performance in all material respects by the Company of its covenants and the Transaction Parties of their respective other obligations hereunder, hereunder and to the satisfaction of the following further conditions at the First Closing Time Date or on each Date of DeliveryOption Closing Date, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at Representatives on the First Closing Time Date and on each Option Closing Date of Delivery an opinion or opinions of Mayer▇▇▇▇▇▇, Brown, ▇▇▇▇▇ & Maw Bockius LLP, special tax counsel for the Company, Company and the Subsidiaries (and the Representatives shall have received an additional six conformed copies of each of such counsel’s legal opinion for each of the other Aames Transaction Partiesseveral Underwriters), addressed to the Underwriters and dated the First Closing Date and each Option Closing Date, as applicable, and in form and substance reasonably satisfactory to Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect matters set forth on Exhibit C A hereto.
(c) The Company shall furnish to the Underwriters at Representatives on the First Closing Time Date and on each Option Closing Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the CompanyCompany (and the Representatives shall have received an additional six conformed copies of each of such counsel’s legal opinion for each of the several Underwriters), which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the First Closing Time Date and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General CounselDate, as to certain licensing applicable, and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance reasonably satisfactory to Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, as to the matters set forth on Exhibit B hereto.
(gd) The Representative Representatives shall have received from Ernst & Young LLP LLP, letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, relating containing statements to the financial statements, including any pro forma financial statements, effect that they are independent accountants with respect to the Company within the meaning of Rule 101 of the Company AICPA’s Code of Professional Conduct, and statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement and the Subsidiaries, Prospectus (and the Representatives shall have received an additional six conformed copies of such other matters customarily covered by comfort letters issued in connection with registered public offerings. accountants’ letter for each of the several Underwriters); In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, in each case not contemplated by the Prospectus, it shall be a further condition to the obligations of the Underwriters that (Aa) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems Representatives deem such explanation unnecessary, and (Bb) such changes, decreases or increases do not, in the sole judgment of the RepresentativeRepresentatives, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) At the First Closing Date and each Option Closing Date, the Representatives shall have received from Ernst & Young LLP, independent public or certified public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (d) of this Section 6, except that the specified date referred to therein for the carrying out of procedures shall be no more than five business days prior to the First Closing Date or Option Closing Date, as the case may be (and the Representatives shall have received an additional six conformed copies of such accountants’ letter for each of the several Underwriters).
(f) The Representative Representatives shall have received at the First Closing Time Date and on each Date of Delivery Option Closing Date, as applicable, the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the First Closing Time Date or such Date of DeliveryOption Closing Date, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(ig) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jh) Prior to the First Closing Time Date and each Option Closing Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 any post-effective amendment to the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issuedissued or is in effect, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, Statement and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(ki) All filings Prior to the First Closing Date and each Option Closing Date, the Company shall have filed the Prospectus with the Commission (including the information required by Rule 424 430A under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430A, and such post-effective amendment shall have become effective; or, if the Company elected to rely upon Rule 434 under the Securities Act to have been filed by and obtained the Closing Time Representatives consent thereto, the Company shall have been made filed a term sheet with the Commission in the manner and within the applicable time period prescribed for such filing required by such RuleRule 424(b).
(lj) Between the time of execution of this Agreement and the First Closing Time Date or the relevant Option Closing Date of Delivery (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in on the NYSENew York Stock Exchange.
(nl) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(om) The Representative Representatives shall have received lock-up letter agreements from each officer, director, officer and 1% or greater stockholder trustee of the Company and Aames Financial Ifrom Vornado Realty, L.P. substantially in the form of Exhibit A C attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pn) The Company and each Transaction Party shallRepresentatives shall have received, at the First Closing Time Date and on each Date of DeliveryOption Closing Date, deliver to the Underwriters a certificate of its Chairman duly authorized officers of the BoardCompany and the Partnership, Chief Executive Officersolely in their respective capacities as officers, President, Chief Operating Officer dated as of such First Closing Date or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableOption Closing Date, to the effect that the signers of such certificates have carefully examined the Prospectus, any amendment or supplement to the Prospectus and this Agreement, and that:
(i) the representations and warranties of the Company and the Transaction Parties Partnership in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be complied with, performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themthereto, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration StatementStatement and the Prospectus, S-4 and except as described in the Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or the capital stock, limited liability company membership interests or units of limited partnership interest of any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided.
(o) The Representatives shall receive, that at the First Closing Date and on each Option Closing Date, a certificate delivered by of the applicable officers Secretary of SFP may omit the matters set forth in subclauses Company certifying as to (i) the Declaration of Trust and any amendments thereto, (ii) the Bylaws and any amendments thereto, (iii) resolutions of the Board of Trustees of the Company authorizing the execution and delivery of this Agreement, the issuance and sale of the Shares and performance of the Company’s and the Partnership’s other obligations under this Agreement and the other offering documents, (iv) above, may limit certification the Certificate of Limited Partnership of the matters set forth in subclause Partnership and the Partnership Agreement and any amendments thereto, (iv) above correspondence with the Commission, (vi) a specimen Common Shares certificate, (vii) the number of Common Shares authorized and reserved for issuance by the Company and (viii) the minute books of the Company.
(p) On or prior to the representationsdate hereof, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to Company shall have furnished for review by the Representatives such further information, facts certificates and events relating to SFPdocuments as the Representatives may reasonably request.
(q) The Company and each Transaction Partythe Partnership, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company and the Partnership contained herein, herein and the performance by the Company and the Transaction Parties Partnership of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the First Closing Time Date or any Date of DeliveryOption Closing Date, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Operating Partnership hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties Operating Partnership of their respective obligations hereunder, hereunder to be performed at or prior to the Closing Time and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, (i) S▇▇▇▇▇▇▇ & Maw C▇▇▇▇▇▇▇ LLP, corporate counsel for the Company, Company and the Subsidiaries and each of (ii) Hunton & W▇▇▇▇▇▇▇ LLP, special tax counsel for the other Aames Transaction PartiesCompany and the Subsidiaries, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance reasonably satisfactory to C▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters, to the effect set forth on Exhibit in Exhibits A and B hereto, respectively. The Company shall additionally furnish to the Underwriters as of the Closing Time and on each Date of Delivery an additional opinion of Hunton & W▇▇▇▇▇▇▇ LLP to the effect that the Company is not, and the transactions contemplated by the Underwriting Agreement will not cause the Company to become, an “investment company” or any entity controlled by an “investment company” under the Investment Company Act.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of V▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance reasonably satisfactory to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. C▇▇▇▇▇▇▇ Chance US LLP, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to counsel for the Underwriters, dated stating that:
(i) each of the Company and the Private REIT is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the State Department of Assessments and Taxation of Maryland and has the corporate power to own its properties and to conduct its business as described in each of the Prospectus and the Disclosure Package;
(ii) the Company has the corporate power to enter into and perform this Agreement and to consummate the transactions contemplated herein; this Agreement has been duly authorized executed and, so far as is known to such counsel, delivered by the Company;
(iii) the issuance of the Shares has been duly authorized and, when and if issued and delivered against payment therefor in accordance with this Agreement, the Registration Statement and the resolutions adopted by the Board of Directors of the Company, or duly authorized committees thereof, relating to, among other matters, (a) the sale and issuance of the Shares, and (b) the authorization of the execution, delivery and performance by the Company of this Agreement (collectively, the “Resolutions”), the Shares will be validly issued, fully paid and non-assessable;
(iv) the statements under the captions “Risk Factors - Risks Related to Our Company - Maryland takeover statutes may prevent a change of our control. This could depress our stock price,” “Risk Factors - Risks Related to Our Company - Our authorized but unissued common and preferred stock and other provisions of our charter and bylaws may prevent a change in our control,” “Description of Common Stock and Preferred Stock” and “Important Provisions of Maryland Law and of Our Charter and Bylaws” in each of the Registration Statement, the Prospectus and the Disclosure Package, and “Description of the Series A Preferred Stock” in the Prospectus and the Disclosure Package, insofar as such statements constitute summaries of the charter of the Company (the “Company Charter”), the bylaws of the Company (the “Company Bylaws”) or Maryland law, constitute accurate summaries thereof in all material respects;
(v) As of September 7, 2006, the Company had 42,681,833 common shares issued and outstanding (the “Company Outstanding Shares”). All of the Company Outstanding Shares have been duly and validly authorized and issued and are fully paid and nonassessable; and none of the Company Outstanding Shares were issued in violation of any preemptive or similar rights arising under the Company Charter, the Company Bylaws or the Maryland General Corporation Law (the “MGCL”);
(vi) The outstanding shares of stock of the Private REIT (the “Private REIT Outstanding Shares”) have been duly authorized and are validly issued, fully paid and nonassessable; the Private REIT Outstanding Shares are owned of record by the Operating Partnership other than one hundred and twenty-five (125) shares of the Private REIT’s 12.5% Series A Cumulative Non-Voting Preferred Stock which are held by outside investors;
(vii) the issuance and sale of the Shares by the Company are not subject to preemptive or other similar rights arising under the Company Charter, the Company Bylaws or the MGCL;
(viii) the Shares conform in all material respects to the descriptions thereof contained in each of the Prospectus and the Disclosure Package under the caption “Description of the Series A Preferred Stock”;
(ix) the form of certificate used to represent the Preferred Stock complies in all material respects with all applicable statutory requirements of the New York Stock Exchange, the MGCL and with any applicable requirements of the Company Charter and the Company Bylaws; and
(x) the execution and delivery by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly authorized by the Company and do not and will not conflict with the Company Charter or the Company Bylaws.
(xi) The Articles Supplementary have been duly authorized by all necessary corporate action and stockholder action on behalf of the Company and have been filed with the Maryland State Department of Assessments and Taxation (the “Maryland SDAT”).
(c) On the date of this Agreement and at the Closing Time and each Date of Delivery and substantially to (if applicable), the effect set forth on Exhibit E hereto.
(e) SFP Representatives shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇have received from G▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Historical Financial Statements of the Covered Entities and certain financial statements, including any pro forma financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Date of Delivery (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Date of Delivery, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to as the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statementcase may be.
(hd) The Representative Representatives shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ Chance US LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(ie) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representatives shall approve.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Representatives shall have objected in writingwriting prior to the filing thereof.
(jg) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingRepresentatives.
(kh) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Delivery, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementProspectus and the Disclosure Package.
(mj) The Shares shall have been approved for listing in on the NYSE or the Company will use its commercially reasonable best efforts to have listed on the NYSE, subject to notice of issuance.
(nk) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shallreceived, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Company’s Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or such Date of Delivery, as applicable, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements of their respective obligations hereunder and satisfied in all material respects all of the conditions on its their part to be performed or satisfied at or prior to the date hereofClosing Time or such Date of Delivery, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered its subsidiaries taken as one enterprise, except transactions entered into in the ordinary course of businessa whole, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprisea whole, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiarya whole, or (fE) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Properties which has been sustained or will have been sustained which, individually or in the aggregate, has which could reasonably be expected to have a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qm) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably requesthave requested prior to the date hereof.
(r) (An) The Merger Agreement effecting the First Merger and the Second Merger Articles Supplementary shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary filed and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined accepted by the Company and reasonably acceptable to the RepresentativeSDAT.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. (a) The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company Company, Encore Credit and the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement and Power of Attorney on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective obligations hereunder, hereunder and under the Custody Agreement and Power of Attorney and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:.
(ab) The Company and the Selling Stockholders shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇ LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction PartiesSelling Stockholders, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to in the effect set forth on form attached as Exhibit B C hereto.
(bc) The Company shall furnish deliver to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇▇▇▇ & Maw LLP, special tax Maryland counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, Underwriters dated the Closing Time and each Date of Delivery substantially to in the effect set forth on form attached as Exhibit C hereto.D.
(cd) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, regulatory counsel for Underwritersthe Company and the Subsidiaries addressed to the Underwriters and dated the Closing Time and each Date of Delivery substantially in the form attached as Exhibit E hereto.
(ge) The Representative shall have received from Ernst & Young LLP ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above the previous paragraph in this subsection (e) set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hf) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters dated the Closing Time or such Date of Delivery, addressed to the Representative and substantially in the form and substance satisfactory to the Representativeattached as Exhibit F hereto.
(ig) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(jh) Prior to the Closing Time and each Date of Delivery (iA) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (iiB) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; (C) the Registration Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iiiD) none of the Registration Statement, the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(ki) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (iA) there shall not have been any Material Adverse Change Change, and (iiB) no transaction which is material and unfavorable to the Company or any Subsidiary shall have been entered into by the Company or any of the SubsidiariesSubsidiary, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in on the NYSE.
(nl) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(om) The Representative shall have received lock-up agreements from each officer, director, Selling Stockholder and 1% or greater stockholder all stockholders of the Company and Aames Financial ICompany, in the form of Exhibit A B attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pn) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Co-Chief Executive OfficerOfficers, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Encore Credit in this Agreement and the Stock Purchase Agreements are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has Encore Credit have complied in all material respects with or caused to be complied with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied hereunder and under the Stock Purchase Agreements, the Registration Rights Agreement, the Merger Agreement and the Other Transaction Documents at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themthereto, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 Statement and Prospectus, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (eE) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (fF) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, which individually or in the aggregate, has could have a Material Adverse Effect. provided.
(o) Each Selling Stockholder will, that at the certificate delivered by Closing Time and on each Date of Delivery, deliver to the applicable officers of SFP may omit Underwriters a certificate, to the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause effect that:
(i) above to the representations, representations and warranties and agreements of SFP such Selling Stockholder set forth in this Agreement and may limit certification the Stock Purchase Agreements and may limit certification the Custody Agreement and Power of Attorney are true and correct as of such date; and
(ii) such Selling Stockholder has complied with all the matters set forth in subclause (iii) above agreements and satisfied all the conditions on its part to information, facts be performed or satisfied hereunder and events relating under the Stock Purchase Agreements and the Custody Agreement and Power of Attorney at or prior to SFPthe date hereof.
(qp) The Company Company, Encore Credit and each Transaction Partythe Selling Stockholders, as applicable, shall have furnished or caused to be furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company Company, Encore Credit and the Selling Stockholders contained hereinherein and in the Stock Purchase Agreements, the Registration Rights Agreement, the Merger Agreement, the Custody Agreement and Power of Attorney and the Other Transaction Documents, and the performance by the Company Company, Encore Credit and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters Representative may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and hereof, at the Closing Time and on each Date of Delivery, as applicablePurchase, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and the satisfaction of to the following further additional conditions at the Closing Time or on each Date of Delivery, as applicableprecedent:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Purchase an opinion of Mayer, Brown, ▇▇▇▇ Fenwick & Maw West LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, and dated the Closing Time of Purchase, in form and each Date of Delivery and substantially substance satisfactory to the effect Underwriters, as to the matters set forth on in Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Purchase an opinion of Mayer, Brown, King & S▇▇▇▇▇▇▇▇ & Maw LLP, special tax regulatory counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, and dated the Closing Time of Purchase, in form and substantially substance satisfactory to the effect Underwriters, as to the matters set forth on in Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Purchase an opinion of K▇▇▇▇▇ Martens O▇▇▇, ▇ & Bear LLP, Maryland special intellectual property counsel for the Company, which opinion(s) shall be addressed to the Underwriters, and dated the Closing Time of Purchase, in form and each Date of Delivery and substantially substance satisfactory to the effect Underwriters, as to the matters set forth on in Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, Agreement and the Closing Time of Purchase and each Date of Delivery, as the case may be, addressed to the Representative, Underwriters in form and substance the forms satisfactory to the RepresentativeUnderwriters, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such which letters shall be accompanied by a written explanation of cover the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, various financial disclosures contained in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement, the Prospectus and the Permitted Free Writing Prospectuses, if any.
(he) The Representative Underwriters shall have received at the Closing Time and on each Date of Delivery Purchase, the favorable opinion of C▇▇▇▇▇, H▇▇▇ & ▇S▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Time or such Date of DeliveryPurchase, addressed to the Representative and in form and substance reasonably satisfactory to the RepresentativeUnderwriters.
(if) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(jg) The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., Boston time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Act).
(h) Prior to and at the Closing Time and each Date of Delivery Purchase, (i) no stop order suspending with respect to the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been issued under the Act or proceedings initiated under Section 8(d) or threatened, by the Commission, and no suspension 8(e) of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurredAct; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement and all amendments thereto shall not contain an untrue statement of a material fact or 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, therein not misleading.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when neither the Registration Statement and S-4 became effective and at all times subsequent Prospectus nor amendment or supplement thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not shall include any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent neither the Disclosure Package, nor any amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the respective dates as of which information is given statements therein, in the Registration Statementlight of the circumstances under which they are made, S-4 not misleading; and Prospectus(v) none of the Permitted Free Writing Prospectuses, there has not been (a) any Material Adverse Changeif any, (b) any transaction that is shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the Company and the Subsidiaries considered as one enterprisestatements therein, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness light of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprisecircumstances under which they are made, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause misleading.
(i) above The Company will, at the Time of Purchase deliver to the representationsUnderwriters a certificate of its Chief Executive Officer and its Chief Financial Officer, warranties and agreements dated the Time of SFP Purchase, in this Agreement and may limit certification and may limit certification of a form satisfactory to the matters set forth in subclause (iii) above to information, facts and events relating to SFPUnderwriters.
(qj) The Underwriters shall have received each of the signed Lock-Up Agreements referred to in Section 3(jj) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Time of Purchase.
(k) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the ProspectusStatement, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of Prospectus or any conditions contained herein or therein, Permitted Free Writing Prospectus as of the Closing Time or any Date of Delivery, Purchase as the Underwriters may reasonably request.
(r) (Al) The Merger Agreement effecting the First Merger and the Second Merger Shares shall have been duly authorized by all necessary corporate action approved for listing on NASDAQ, subject only to notice of issuance at or prior to the part Time of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this AgreementPurchase.
(sm) All outstanding optionsFINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 arrangements of the Delaware General Corporation Lawtransactions, contemplated hereby.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Dexcom Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Operating Partnership hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties Operating Partnership of their respective obligations hereunder, hereunder to be performed at or prior to the Closing Time and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, (i) ▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇▇ LLP, corporate counsel for the Company, Company and the Subsidiaries and each of (ii) Hunton & ▇▇▇▇▇▇▇▇ LLP, special tax counsel for the other Aames Transaction PartiesCompany and the Subsidiaries, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters, to the effect set forth on Exhibit in Exhibits A and B hereto.
(b) , respectively. The Company shall additionally furnish to the Underwriters at as of the Closing Time and on each Date of Delivery an additional opinion of Mayer, Brown, Hunton & ▇▇▇▇▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially LLP to the effect set forth on Exhibit C heretothat the Company is not, and the transactions contemplated by the Underwriting Agreement will not cause the Company to become, an “investment company” or an entity controlled by an “investment company,” as such term is defined under the Investment Company Act.
(cb) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance reasonably satisfactory to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chance US LLP, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to counsel for the Underwriters, dated stating that:
(i) each of the Company and the Private REIT is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the State Department of Assessments and Taxation of Maryland and has the corporate power to own its properties and to conduct its business as described in each of the Prospectus and the Disclosure Package;
(ii) the Company has the corporate power to enter into and perform this Agreement and to consummate the transactions contemplated herein; this Agreement has been duly authorized executed and, so far as is known to such counsel, delivered by the Company;
(iii) the issuance of the Shares has been duly authorized and, when and if issued and delivered against payment therefor in accordance with this Agreement, the Registration Statement and the resolutions adopted by the Board of Directors of the Company, or duly authorized committees thereof, relating to, among other matters, (a) the sale and issuance of the Shares, and (b) the authorization of the execution, delivery and performance by the Company of this Agreement (collectively, the “Resolutions”), the Shares will be validly issued, fully paid and non-assessable;
(iv) the statements under the captions “Risk Factors - Risks Related to Our Company - Maryland takeover statutes may prevent a change of our control. This could depress our stock price,” “Risk Factors - Risks Related to Our Company - Our authorized but unissued common and preferred stock and other provisions of our charter and bylaws may prevent a change in our control,” “Description of Common Stock and Preferred Stock” and “Important Provisions of Maryland Law and of Our Charter and Bylaws” in each of the Registration Statement, the Prospectus and the Disclosure Package, and “Description of the Series B Preferred Stock” in the Prospectus and the Disclosure Package, insofar as such statements constitute summaries of the charter of the Company (the “Company Charter”), the bylaws of the Company (the “Company Bylaws”) or Maryland law, constitute accurate summaries thereof in all material respects;
(v) As of May __, 2007, the Company had __ common shares issued and outstanding, __ Series A Cumulative Redeemable Non-Voting Preferred Stock and __ Series B Cumulative Redeemable Non-Voting Preferred Stock (the “Company Outstanding Shares”). All of the Company Outstanding Shares have been duly and validly authorized and issued and are fully paid and nonassessable; and none of the Company Outstanding Shares were issued in violation of any preemptive or similar rights arising under the Company Charter, the Company Bylaws or the Maryland General Corporation Law (the “MGCL”);
(vi) The outstanding shares of stock of the Private REIT (the “Private REIT Outstanding Shares”) have been duly authorized and are validly issued, fully paid and nonassessable; the Private REIT Outstanding Shares are owned of record by the Operating Partnership other than one hundred and twenty-five (125) shares of the Private REIT’s 12.5% Series A Cumulative Non-Voting Preferred Stock which are held by outside investors;
(vii) the issuance and sale of the Shares by the Company are not subject to preemptive or other similar rights arising under the Company Charter, the Company Bylaws or the MGCL;
(viii) the Shares conform in all material respects to the descriptions thereof contained in each of the Prospectus and the Disclosure Package under the caption “Description of the Series B Preferred Stock”;
(ix) the form of certificate used to represent the Preferred Stock complies in all material respects with all applicable statutory requirements of the MGCL and with any applicable requirements of the Company Charter and the Company Bylaws;
(x) the execution and delivery by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly authorized by the Company and do not and will not conflict with the Company Charter or the Company Bylaws; and
(xi) The Articles Supplementary have been duly authorized by all necessary corporate action and stockholder action on behalf of the Company and have been filed with the Maryland State Department of Assessments and Taxation (the “Maryland SDAT”).
(c) On the date of this Agreement and at the Closing Time and each Date of Delivery and substantially to (if applicable), the effect set forth on Exhibit E hereto.
(e) SFP Representative shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇have received from ▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Historical Financial Statements of the Covered Entities and certain financial statements, including any pro forma financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Date of Delivery (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Date of Delivery, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to as the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statementcase may be.
(hd) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Chance US LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) The Registration Statement is effective as of the Applicable Time or such later time and date as the Representative shall approve.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Representative shall have objected in writingwriting prior to the filing thereof.
(jg) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingRepresentative.
(kh) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Delivery, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementProspectus and the Disclosure Package.
(mj) The Shares shall have been approved for listing in on the NYSE, subject to notice of issuance.
(nk) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shallreceived, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Company’s Chief Financial Officer, Officer and General Partner or Managing Member, as applicablecounsel, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or such Date of Delivery, as applicable, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements of their respective obligations hereunder and satisfied in all material respects all of the conditions on its their part to be performed or satisfied at or prior to the date hereofClosing Time or such Date of Delivery, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered its subsidiaries taken as one enterprise, except transactions entered into in the ordinary course of businessa whole, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprisea whole, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiarya whole, or (fE) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Properties which has been sustained or will have been sustained which, individually or in the aggregate, has which could reasonably be expected to have a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qm) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably requesthave requested prior to the date hereof.
(r) (An) The Merger Agreement effecting the First Merger and the Second Merger Articles Supplementary shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary filed and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined accepted by the Company and reasonably acceptable to the RepresentativeSDAT.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Transaction Parties Advisor hereunder on the date hereof and at the Closing Time (as if made on and on each Date as of Delivery, as applicablesuch date), the performance in all material respects by the Company Company, the Operating Partnership and the Transaction Parties Advisor of their respective obligations hereunder, hereunder and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableTime:
(a) The Company shall furnish to the Underwriters Representatives at the Closing Time and on each Date opinions of Delivery an opinion of Mayer, Brown, ▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇ LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction PartiesAdvisor, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery in form and substantially substance satisfactory to counsel for the Underwriters to the effect set forth on in Exhibit A and Exhibit B heretohereto and to such further effect as counsel to the Underwriters may reasonably request.
(b) The Company shall furnish to the Underwriters Representatives at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax in-house counsel for the Company, the Subsidiaries and each of the other Aames Transaction PartiesAdvisor, as to certain tax matters, which opinion shall be addressed to the Underwriters, Representatives and dated the Closing Time and substantially in form and substance satisfactory to counsel for the Underwriters to the effect set forth on in Exhibit C heretohereto and to such further effect as counsel to the Underwriters may reasonably request.
(c) The Company shall furnish to the Underwriters Representatives at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ Lovells US LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery in form and substantially substance satisfactory to counsel for the Underwriters to the effect set forth on in Exhibit D heretohereto and to such further effect as counsel to the Underwriters may reasonably request.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative Representatives shall have received from Ernst & Young BDO USA, LLP letters dated, respectively, a letter dated as of the date of this Agreement, Agreement and the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the Representative, Representatives relating to the combined financial statements, including any pro forma financial statements, statements of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In .
(e) The Representatives shall have received from Ernst & Young LLP a letter dated as of the event that date of this Agreement and the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition Closing Time addressed to the obligations of Representatives, in form and substance satisfactory to the Underwriters that (A) such letters shall be accompanied by a written explanation Representatives relating to the combined financial statements of the Company as to and the significance thereof, unless Subsidiaries and the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment financial statements of the Representative, make it impractical or inadvisable to proceed with the purchase PIM Highland Holding LLC and delivery of the Shares as contemplated by its subsidiaries and included in the Registration Statement, the General Disclosure Package and the Prospectus, and such other matters customarily covered by comfort letters issued in connection with registered public offerings.
(hf) The Representative Representatives shall have received at the Closing Time and on each Date of Delivery the favorable an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPDLA Piper LLP (US), counsel for the Underwriters, addressed to the Representatives and dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the RepresentativeRepresentatives.
(ig) No amendment or supplement to the Registration Statement Statement, the General Disclosure Package or the Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jh) Prior to the Closing Time and each Date of Delivery (i) the Registration Statement shall be effective with the Commission and no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus preliminary prospectus or Prospectus has shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the General Disclosure Package and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(ki) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a Material Adverse Change Effect, whether or not arising in the ordinary course of business, and (ii) no transaction which that is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which that in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in on the NYSENew York Stock Exchange, subject only to official notice of issuance.
(nl) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(m) The Articles Supplementary shall have been accepted for record by the Maryland State Department of Assessments and Taxation and shall be effective under the Maryland General Corporation Law.
(n) The Representatives shall have received a copy of the Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
(o) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% at or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at before the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Company’s Chief Executive Officer, President, President or Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act; and
(iii) subsequent to the respective dates as of which information is given in the General Disclosure Package or the Prospectus, there has not been (A) any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a Material Adverse Effect, whether or not arising in the ordinary course of business, (B) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, (C) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (E) any dividend or distribution of any kind declared, paid or made on the capital stock or other equity interests of the Company or any Subsidiary, or (F) any loss or damage (whether or not insured) to the property of the Company or any Subsidiary that has been sustained or will have been sustained that has or may reasonably be expected to have a Material Adverse Effect.
(p) The Representatives shall have received at or before the Closing Time a certificate of the Advisor’s Chief Executive Officer, President or Chief Operating Officer and Chief Accounting Officer or Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Advisor in this Agreement are true and correct, as if made on and as of such date, and the Advisor has complied with all material respects the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and General Disclosure Package or the Prospectus, there has not been (aA) any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have an Advisor Material Adverse ChangeEffect, whether or not arising in the ordinary course of business, or (bB) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPAdvisor.
(q) The Representatives shall have received as of the date of this Agreement and the Closing Time an officers’ certificate, executed on behalf of the Company by the Chief Financial Officer of the Company and each Transaction Partythe Chief Accounting Officer of the Company in form and substance satisfactory to counsel for the Underwriters.
(r) The Company, as applicable, the Operating Partnership and the Advisor shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the General Disclosure Package and the Prospectus, the representations, warranties and statements of the Company Company, the Operating Partnership and the Advisor contained herein, and the performance by the Company Company, the Operating Partnership and the Transaction Parties Advisor of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each the Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder in all material respects on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance by the Company of its obligations hereunder in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each the Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇▇ & Maw LLP▇▇▇▇▇, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to Delivery, covering the effect matters set forth on in Exhibit B A hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(ci) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇, LLP, counsel for Underwritersaddressed to the Underwriters and dated the Closing Time and each Date of Delivery, substantially in the form attached as Exhibit B hereto, and (ii) a signed copy of the opinions addressed to the Company from ▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP substantially in the form of Exhibit 8.1 to the Registration Statement.
(gc) The Representative Representatives shall have received from Ernst Deloitte & Young Touche LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(id) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(je) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; and (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, Statement and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lf) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery no material adverse change in the assets, business, operations, earnings, prospects, properties or condition (ifinancial or otherwise) there of the Company and the Subsidiaries taken as a whole shall occur (whether or not have been any Material Adverse Change arising in the ordinary course of business), and (ii) no transaction neither the Company nor any of the Subsidiaries shall have entered into any agreement which is material and unfavorable to the Company.
(g) The Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable duly applied to proceed with the public offering of list the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in on the NYSE.
(nh) If the issuance and sale of the Initial Shares and/or Option Shares to the Underwriters will result in the Underwriters individually or in the aggregate exceeding the Aggregate Stock Ownership Limit (as defined in the Amended Articles of Incorporation of the Company as of the date hereof) with respect to the Company’s capital stock, then, on or prior to the Closing Time, the Underwriters shall have received from the Company’s Board of Directors a waiver or exemption from the Aggregate Stock Ownership Limit with respect to the issuance and sale of such Shares, in form and substance reasonably satisfactory to the Underwriters.
(i) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsarrangements between the date of this Agreement and the Closing Time or the Date of Delivery, as applicable.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pj) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Operating Officer, General Partner or Managing Member, as applicableand its Secretary and Treasurer, to the effect that:
(i) , to each of such officer’s knowledge, the representations and warranties of the Company and the Transaction Parties set forth in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied correct in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, paragraphs (e) any dividend or distribution of any kind declared), paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage and (whether or not insuredg) to the property of the Company or any subsidiary which has been sustained or will this Section 6 have been sustained whichsatisfied, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers each case as of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPsuch date.
(qk) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements statement of the Company contained herein, herein and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, Delivery as the Underwriters may reasonably request.
(r) (Al) The Merger Agreement effecting the First Merger and the Second Merger Company shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill performed its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease Agreement as are to be outstanding.
(t) None of SFP performed by the terms hereof and thereof at or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following before the Closing Time and pursuant to such other terms as are determined by or the Company and reasonably acceptable relevant Date of Delivery. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the Representativeobligations of the Underwriters hereunder.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company Company, NYMC and the Transaction Parties Founding Members hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company Company, NYMC and the Transaction Parties Founding Members of their respective obligations hereunder, hereunder and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an two opinions of Hunton & Williams LLP (each of which may rely on the opinion of Mayer, Brown, Venable ▇▇▇ ▇▇ ▇he extent that any opinion contained therein pe▇▇▇▇▇▇ & Maw LLPto Maryland law), counsel for the Company, the Subsidiaries NYMC and each of the other Aames Transaction PartiesNYMF, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance reasonably satisfactory to McDermott, Will & Emery, counsel for the effect set Underwriters, with res▇▇▇▇ ▇▇ ▇he matter▇ ▇▇▇ forth on Exhibit B A-1 and Exhibit A-2 hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw Venable LLP, special tax Maryland counsel for the Company, the Subsidiaries addresse▇ ▇▇ ▇▇e Underwriters and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially each Date of Delivery and in form and substance reasonably satisfactory to McDermott, Will & Emery, counsel for the effect set Underwriters, with res▇▇▇▇ ▇▇ ▇he matter▇ ▇▇▇ forth on Exhibit C B hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Wiener Brodsky, Sidman & Kider, P.C., special regulatory counsel for t▇▇ ▇▇▇▇an▇, ▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed ressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially in form and substance reasonably satisfactory to McDermott, Will & Emery, counsel for the effect set Underwriters, with res▇▇▇▇ ▇▇ ▇he matter▇ ▇▇▇ forth on Exhibit D C hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst Deloitte & Young LLP Touche LLP, letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance reasonably satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the SubsidiariesNYMC, data with respect to NYMC's historical operations, and such other financial matters included within any Preliminary Prospectus and the Prospectus as are customarily covered by comfort letters issued in connection with registered public offeringsofferings involving similar companies. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or earnings, increases in borrowings, or changes in NYMC's historical operating data from the related information set forth in any Preliminary Prospectus or the Prospectus it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(jf) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, threatened by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, Statement and the Prospectus nor the S-4 shall not contain an any untrue statement of a material fact or 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.
(kg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRule and in accordance with this Agreement.
(lh) Between the time of execution date of this Agreement and the Closing Time or the relevant Date of Delivery Delivery: (i) there shall not have been any a Material Adverse Change or any event or development that could reasonably be expected to have a Material Adverse Effect and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiariesits subsidiaries, in each case, which in the Representative’s 's sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mi) The Shares shall have been approved for listing in on the NYSENew York Stock Exchange, subject to official notice of issuance.
(nj) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ok) The Representative shall have received lock-up letter agreements from each officer, director, executive officer and director of the Company (and each director nominee named in the Prospectus) and each 1% or greater stockholder of the Company and Aames Financial ICompany, if any, substantially in the form of Exhibit A attached heretoD, and such letter agreements shall be in full force and effect; provided, however, that . The persons from whom the Representative expects to receive such lock-up letter agreement with SFP may permit SFP agreements are listed on Schedule D-1 to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.Exhibit D.
(pl) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties NYMC in this Agreement are are, if qualified as to materiality, true and correctcorrect in all respects and, if not so qualified, true and correct in all material respects, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) each Preliminary Prospectus and, when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of themthereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, thereunder and in all material respects conformed to the requirements of the Securities Act or and the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themthereto, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 each Preliminary Prospectus and the Prospectus, and except as may be otherwise stated in such Registration Statement, Preliminary Prospectus or Prospectus, there has not been (aA) any a Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company Change or any Subsidiary that is material event or development including, but not limited to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company Company, NYMC or any subsidiary which has been sustained or will NYMF, that could reasonably be expected to have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, whether or not arising in the ordinary course of business, (B) any transaction that is material to the certificate delivered Company, NYMC and NYMF taken as a whole, entered into by the applicable officers of SFP may omit Company, NYMC or NYMF, (C) any liability or obligation, contingent or otherwise, directly or indirectly incurred by the matters set forth in subclauses (ii) and (iv) aboveCompany, may limit certification of the matters set forth in subclause (i) above NYMC or NYMF that is material to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction Partyits subsidiaries taken as a whole, (D) any dividend or distribution of any kind declared, paid or made by the Company or NYMC on any class of its capital stock or membership interests or any repurchase or redemption by the Company or NYMC of any class of capital stock or other equity interests, or (E) any change in the capital stock or membership interests, as applicable, or long-term debt or short-term borrowings of the Company, NYMC or NYMF;
(m) Each of the Founding Members will, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate signed by such Founding Member to the effect set forth in subsections 6(k)(i) through (k)(iv) above.
(n) NYMC will, at the Closing Time and on each Delivery Date, deliver to the Underwriters a certificate of its Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Financial Officer to the effect set forth in subsections 6(k)(i) through (k)(iv) above but only with respect to NYMC.
(o) The Company, NYMC and the Founding Members shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company Company, NYMC and the Founding Members contained herein, and the performance by the Company Company, NYMC and the Transaction Parties Founding Members of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (Ap) The Merger Agreement effecting the First Merger Company, NYMC and the Second Merger Founding Members each shall have been duly authorized performed in all material respects its obligations under this Agreement as are to be performed by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of terms hereof at or before the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger Time or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and relevant Date of Delivery.
(Cq) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the The consummation of the transactions contemplated by this the Contribution Agreement or otherwise adversely affect shall occur at the ability of any party hereto Closing Time with respect to fulfill its obligations under the Initial Shares pursuant to this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (New York Mortgage Trust Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement and Power of Attorney on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective obligations hereunder, hereunder and under the Custody Agreement and Power of Attorney and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an Option Closing Time the opinion of Mayer, Brown, and the disclosure letter from Hunton & W▇▇▇▇▇▇▇ & Maw LLP, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and Option Closing Time, as applicable, substantially to the effect as set forth on in Exhibit B C and Exhibit D hereto.
(b) The Company Each Selling Stockholder shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the CompanySelling Stockholders, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time Underwriters and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance reasonably satisfactory to ▇▇▇▇▇▇ Winston & ▇▇S▇▇▇▇▇ LLP, counsel for the Underwriters, stating that:
(i) such Selling Stockholder, if a corporation, partnership, trust or similar entity, has been duly organized and is validly existing in good standing under the laws of its respective jurisdiction of organization with full power and authority to execute and deliver this Agreement and the Custody Agreement and Power of Attorney, and to consummate the transactions described in this Agreement and the Custody Agreement and Power of Attorney;
(ii) the execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney by such Selling Stockholder, and the consummation by such Selling Stockholder of the transactions contemplated by this Agreement and by the Custody Agreement and Power of Attorney, do not and will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of or default under), (i) any provisions of the articles of incorporation, charter, partnership agreement, trust document, by-laws or other similar governing documents, as applicable, of such Selling Stockholder, (ii) any provision of any material license, indenture, mortgage, deed of trust, loan, credit or other agreement or instrument to which such Selling Stockholder is a party or by which its properties may be bound or affected, and which is known to such counsel, (iii) any law or regulation binding upon or applicable to such Selling Stockholder or any of its properties or assets, or (iv) any decree, judgment or order applicable to such Selling Stockholder;
(iii) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by such Selling Stockholder and each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity, and except that enforceability of the indemnification and contribution provisions set forth in Section 9 of this Agreement may be limited by the federal or state securities laws of the United States or public policy underlying such laws;
(iv) upon the sale and delivery of the Shares by each Selling Stockholder against receipt of payment therefor, in each case in accordance with the terms of this Agreement and the Custody Agreement and Power of Attorney, the Underwriters will acquire good and marketable title to such Shares, free and clear of any pledge, lien, encumbrance, security interest, or other claim; and
(v) no approval, authorization, consent or order of or filing with any federal or state governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney, the consummation of the transaction contemplated herein and therein, and the sale and delivery of the Shares by such Selling Stockholder as contemplated herein and therein, other than such as have been obtained or made under the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations, and except that such counsel need express no opinion as to any necessary qualification under the state securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters.
(gc) The On the date of this Agreement and at the Closing Time and each Option Closing Time (if applicable), the Representative shall have received from Ernst & Young BDO S▇▇▇▇▇▇ LLP letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance reasonably satisfactory to the Representative, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date referred to therein for the carrying out of procedures no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowingsborrowings to the amounts disclosed in the Prospectus, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hd) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ Winston & ▇▇S▇▇▇▇▇ LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance reasonably satisfactory to the Representative.
(ie) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issuedissued or is in effect, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or event or occurrence which could reasonably be expected to result in a Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing inclusion in the NYSENasdaq Global Market.
(nk) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative shall have received lock-up agreements from each officer, director, director and 1% or greater stockholder of the Company and Aames Financial ISelling Stockholder, in the form of Exhibit A B attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Operating Officer, Chief Investment Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and the Disclosure Package, except as described in the Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or the capital stock, limited liability company membership interests or units of limited partnership interest of any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided.
(n) Each Selling Stockholder will, that at the certificate delivered by Closing Time and on each Option Closing Time, deliver to the applicable officers of SFP may omit Underwriters a certificate, to the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause effect that:
(i) above to the representations, representations and warranties and agreements of SFP such Selling Stockholder set forth in this Agreement and may limit certification in the Custody Agreement and may limit certification Power of Attorney are true and correct as of such date; and
(ii) such Selling Stockholder has complied with all the matters set forth in subclause (iii) above agreements and satisfied all the conditions on its part to information, facts be performed or satisfied hereunder and events relating under the Custody Agreement and Power of Attorney at or prior to SFPthe date hereof.
(qo) The Company and each Transaction Partythe Selling Stockholders, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained hereinherein and in the Custody Agreement and Power of Attorney, and the performance by the Company and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Asset Capital Corporation, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer, Brown, ▇▇▇▇▇ Lord ▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇ LLP, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date Option Closing Time, substantially in the form of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Option Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.Counsel for the Company and the Subsidiaries, Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date Option Closing Time, substantially in the form of Delivery and substantially to the effect set forth on Exhibit E C hereto.
(ec) SFP shall furnish to On the Underwriters date of this Agreement and at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Option Closing Time and each Date of Delivery and substantially to (if applicable), the effect set forth on Exhibit F hereto.
(f) The Company Representative shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & have received from BDO ▇▇▇▇▇▇▇ LLP▇, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, however, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (Ai) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (Bii) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hd) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Sidley Austin LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and ; (ii) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (iiiii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Representative; (iv) the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (v) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kh) All filings with the Commission required by Rule 424 under of the Securities Act Regulations to have been filed by the Closing Time or each Option Closing Time, as applicable, shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or any prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing in on the NYSE.
(nk) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative shall have received lock-up agreements from each officer, director, director and 1% or greater stockholder of the Company and Aames Financial ICompany, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shall, at At the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters shall have received a certificate of its Chairman of the BoardCompany’s Chairman, Chief Executive Officer, President, Chief Operating Officer and President or Senior Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement Statement, the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of themthereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules Securities Act Regulations and regulations of the Commission thereunder, as the case may be, Exchange Act Regulations and in all material respects conformed to the applicable requirements of the Securities Act, the Exchange Act, the Securities Act or Regulations and the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may beRegulations; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth summarized or described in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forthsummarized or described; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (eE) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (fF) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qn) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and therein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as applicable, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Patriot Risk Management, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Operating Partnership in Section 3 hereof, in each case on the date hereof and at the Closing Time and on each Date of Delivery, as if made on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, to the performance in all material respects by the Company and the Transaction Parties Operating Partnership of their respective obligations hereunder, hereunder to be performed at or prior to the Closing Time and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion and letter of Mayer, Brown, ▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇▇ LLP, corporate counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery and substantially to the effect Delivery, as set forth on Exhibit in Exhibits A and B hereto, respectively.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as set forth in Exhibit C hereto.
(c) On the case may bedate of this Agreement and at the Closing Time and each Date of Delivery (if applicable), the Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated the respective dates of delivery thereof and addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeUnderwriters, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Financial Statements and certain financial statements, including any pro forma financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Date of Delivery (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Date of Delivery, decreases in total assets or retained earnings or increases in borrowingsas the case may be.
(d) The Underwriters shall have received at the Closing Time and on each Date of Delivery (i) an opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, it shall be a further condition to counsel for the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company Underwriters, as to the significance thereof, unless the Representative deems such explanation unnecessarycertain federal income tax matters, and (Bii) such changesan opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, decreases or increases do notcounsel for the Underwriters, as to certain matters under the Investment Company Act, addressed to the Representatives and dated the Closing Time and each Date of Delivery, as set forth in Exhibits D and E hereto, respectively. In addition, the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative Underwriters shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Time or such and each Date of Delivery, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(ie) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Representatives shall have reasonably objected in writingwriting prior to the filing thereof.
(jf) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all reasonable requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingRepresentatives.
(kg) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Delivery, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementProspectus and the Disclosure Package.
(mi) The Preferred Stock shall have been registered pursuant to Section 12(b) of the Exchange Act and the Shares shall have been approved for listing in on the NYSE, subject to notice of issuance.
(nj) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shallreceived, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman two of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableCompany’s executive officers, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or such Date of Delivery, as applicable, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements of their respective obligations hereunder and satisfied in all material respects all of the conditions on its their part to be performed or satisfied at or prior to the date hereofClosing Time or such Date of Delivery, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered its subsidiaries taken as one enterprise, except transactions entered into in the ordinary course of businessa whole, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprisea whole, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiarya whole, or (fE) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Properties which has been sustained or will have been sustained which, individually or in the aggregate, has which would reasonably be expected to have a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and ; and
(iv) above, may limit certification the Commission has not notified the Company of the matters set forth in subclause (i) above any objection to the representations, warranties and agreements use of SFP an “automatic shelf registration statement” (as defined in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPRule 405).
(qk) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may have reasonably requestrequested prior to the date hereof.
(r) (Al) The Merger Agreement effecting the First Merger and the Second Merger Articles Supplementary shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary filed and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined accepted by the Company and reasonably acceptable to the RepresentativeSDAT.
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, (ii) the performance in all material respects by the Company and the Transaction Parties of their respective its obligations hereunder, and (iii) the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) A. The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time (if applicable) an opinion of MayerLedgewood, Brown, ▇▇▇▇ & Maw LLPa professional corporation, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery Option Closing Time and substantially in the form attached hereto as Annex I and in form and substance reasonably satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the effect set forth on Exhibit B heretoUnderwriters.
(b) B. The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time (if applicable) an opinion of Mayer, Brown, ▇▇▇▇ & Maw DLA Piper US LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., in the Company’s Executive Vice President, Secretary form attached hereto as Annex II and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance reasonably satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
C. On the date of this Agreement and at the Closing Time and each Option Closing Time (g) The if applicable), the Representative shall have received from Ernst & Young ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company and the SubsidiariesSubsidiaries included or incorporated by reference in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Option Closing Time, decreases in total assets or retained earnings or increases in borrowingsas the case may be.
D. On the date of this Agreement and at the Closing Time and each Option Closing Time (if applicable), it the Representative shall be a further condition have received from Ernst & Young LLP letters dated the respective dates of delivery thereof and addressed to the obligations Representative, in form and substance satisfactory to the Representative, containing statements and information of the type specified in AU Section 634 “Letters for Underwriters that (A) such letters shall be accompanied and Certain other Requesting Parties” issued by a written explanation the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company as to and the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases Subsidiaries included or increases do not, incorporated by reference in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings.
(h) E. The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative, which opinion shall with respect to certain matters of Maryland law rely on the opinion delivered by DLA Piper US LLP pursuant to Section 6(b).
(i) F. The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve.
G. No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(j) H. Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) I. All filings with the Commission required by Rule 424 under of the Securities Act Regulations to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) J. Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Option Closing Time (i) there shall not have been any Material Adverse Change or any development involving a prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares K. At the Closing Time, the Company shall have been approved for listing in applied to list the Shares on the NYSE.
(n) L. The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) M. The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman two principal executive officers or, in the case of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicablePartnership two principal executive officers of RAIT General, to the effect that:
(i) a. the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time and, if applicable, any Option Closing, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) b. no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or or, to their knowledge, threatened under the Securities Act;
(iii) c. the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of Securities Act Regulations or the Commission thereunderExchange Act Regulations, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of Securities Act Regulations or the Commission thereunderExchange Act Regulations, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time, the Initial Sale Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Registration Statement, the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) d. subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) N. The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares Securities at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time (if applicable) an opinion and negative assurance letter of Mayer, Brown, Freshfields Bruckhaus D▇▇▇▇▇▇▇ & Maw US LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to or the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the applicable Option Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of DeliveryTime, as the case may be, addressed to the Representative, and in form and substance reasonably satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hb) On the date of this Agreement and at the Closing Time and at each Option Closing Time (if applicable), the Representative shall have received from PricewaterhouseCoopers GmbH Wirtschaftsprüfungsgesellschaft a comfort letter addressed to the Representative and dated the respective dates of delivery thereof and in form and substance reasonably satisfactory to the Representative.
(c) The Representative shall have received at the Closing Time and on at each Date Option Closing Time (if applicable) an opinion and negative assurance letter of Delivery the favorable opinion of ▇▇▇▇▇▇ O’Melveny & ▇▇▇M▇▇▇▇ LLP, addressed to the Representative and dated the Closing Time or such Date of Deliverythe applicable Option Closing Time, addressed to as the Representative case may be, and in form and substance reasonably satisfactory to the Representative.
(id) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act at or before 5:30 p.m., New York City time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act).
(e) Any Rule 462(b) Registration Statement required to be filed prior to the sale of the Securities under the Securities Act shall have been filed on the date hereof and shall have become automatically effective upon such filing.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have reasonably objected in writing; provided that the foregoing shall not apply to any document filed with the Commission which is incorporated by reference into the Registration Statement, Prospectus or any document in the Disclosure Package.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatenedor, to the Company’s knowledge, threatened by the Commission, and no suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company shall not have become the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Securities.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Option Closing Time, (i) there shall not have been occurred and then shall not exist any Material Adverse Change material event or material condition that is unfavorable to the Company and not described in the Prospectus and Disclosure Package; and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in the case of each caseof clauses (i) through (ii) above, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares Securities as contemplated by the Registration Statement.
(mi) The Shares Company shall have been approved for listing in submitted to Nasdaq a Notification of Listing of Additional Shares with respect to the NYSEShares and Warrant Shares and Nasdaq shall not have objected thereto.
(nj) The NASD FINRA shall not have raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsor other arrangements of the transactions contemplated hereby.
(ok) The On or prior to the date hereof, the Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of persons listed on Exhibit A attached B hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pl) The Company and each Transaction Party shallshall furnish to the Underwriters, at the Closing Time and on at each Date of DeliveryOption Closing Time (if applicable), deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or its Chief Financial Officer, General Partner dated the Closing Time or Managing Member, as applicablethe applicable Option Closing Time, to the effect thatthat to their knowledge:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made correct on and as of the Closing Date with the same effect as if made on such date, except for those representations and warranties that speak solely as of a specific date hereofand were true and correct as of such date, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or notice by the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) Commission objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or threatened under or, to the Securities Act;Company’s knowledge, threatened; and
(iii) when confirming to the Registration Statement and S-4 became effective and at all times subsequent thereto up effect set forth in paragraph (h) above.
(m) The Company shall furnish to the Underwriters, as of the date hereof, at the Registration Statement Closing Time and at each Option Closing Time (if applicable), a certificate of its Chief Executive Officer and Chief Financial Officer, dated the Closing Time or the applicable Option Closing Time, with respect to certain financial data contained in the Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed substance reasonably satisfactory to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPRepresentative.
(qn) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters and counsel for the Underwriters such other documents information, documents, opinions and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters or their counsel may reasonably request, and all proceedings taken by the Company in connection with the issuance and sale of the Securities as contemplated herein and in connection with the other transactions contemplated by this Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters.
(ro) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of On or prior to the Closing Time, the First Merger Company shall have closed, and there shall duly executed the warrant agreement pursuant to which the Offered Warrants will be no pending or threatened action, suit or proceeding that couldissued, in substantially the reasonable discretion of the Representative, result in the unwinding of either the First Merger form attached hereto as Exhibit C.
(p) On or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of prior to the Closing Time, there the Company shall have terminated its equity line of credit. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice from the Representative to the Company at any time on or prior to the Closing Time and, with respect to the Option Shares, at any time on or prior to the applicable Option Closing Time, which termination shall be no pending or threatened action, suit or proceeding that could, in without liability on the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability part of any party hereto to fulfill its obligations under this Agreementany other party, except that Sections 5, 7, and 9 shall at all times be effective and shall survive such termination.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Lilium N.V.)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicablePurchase, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and the satisfaction of to the following further additional conditions at the Closing Time or on each Date of Delivery, as applicableprecedent:
(a) The Company shall furnish to the Underwriters at the Closing Time of Purchase and on each Date the Additional Time of Delivery an opinion Purchase opinions of Mayer, Brown, ▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated, respectively, the Subsidiaries Time of Purchase and each the Additional Time of the other Aames Transaction PartiesPurchase, which opinion(s) shall be addressed in form and substance reasonably satisfactory to the Underwriters, dated the Closing Time and each Date of Delivery and substantially as to the effect matters set forth on in Exhibit B hereto.
(b) The Company Underwriters shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, have received from ▇▇▇▇▇▇▇ & Maw LLPWhite, special tax counsel for the CompanyLLP letters dated, respectively, the Subsidiaries date of this Agreement, the Time of Purchase and each the Additional Time of Purchase and addressed to the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed Underwriters in forms reasonably satisfactory to the Underwriters, dated which letters shall cover, without limitation, the Closing Time various financial disclosures contained in the Registration Statement, the Prospectus and substantially to the effect set forth on Exhibit C heretoPermitted Free Writing Prospectuses, if any.
(c) The Company shall furnish to the Underwriters at the Closing Time of Purchase and on each Date the Additional Time of Delivery an Purchase opinions of ▇▇▇ ▇▇▇▇, ▇▇ & ▇▇▇▇▇ LLP, intellectual property counsel for the Company, dated, respectively, the Time of Purchase and the Additional Time of Purchase, in form and substance reasonably satisfactory to the Underwriters, as to the matters set forth in Exhibit C hereto.
(d) The Underwriters shall have received at the Time of Purchase, the opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ Hall & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as dated the Time of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativePurchase, in form and substance reasonably satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration StatementUnderwriters.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jf) The Final Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., Boston time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Act).
(g) Prior to and at each of the Closing Time of Purchase and each Date the Additional Time of Delivery Purchase, (i) no stop order suspending with respect to the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been issued under the Act or proceedings initiated under Section 8(d) or threatened, by the Commission, and no suspension 8(e) of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurredAct; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement and all amendments thereto shall not contain an untrue statement of a material fact or 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, therein not misleading.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when neither the Registration Statement and S-4 became effective and at all times subsequent Prospectus nor amendment or supplement thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not shall include any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(h) The Company will, at the Time of Purchase and the Additional Time of Purchase deliver to the respective dates as Underwriters a certificate of which information is given its Chief Executive Officer and its Chief Financial Officer, dated, respectively, the Time of Purchase and the Additional Time of Purchase, in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material form reasonably satisfactory to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause Underwriters.
(i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification The Underwriters shall have received each of the matters set forth signed Lock-Up Agreements referred to in subclause (iiiSection 3(jj) above to informationhereof, facts and events relating to SFPeach such Lock-Up Agreement shall be in full force and effect at the Time of Purchase and the Additional Time of Purchase.
(qj) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the ProspectusStatement, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of Prospectus or any conditions contained herein or therein, Permitted Free Writing Prospectus as of the Closing Time or any Date of Delivery, Purchase and the Additional Time of Purchase as the Underwriters may reasonably request.
(r) (Ak) The Merger Agreement effecting the First Merger and the Second Merger Shares shall have been duly authorized by all necessary corporate action approved for listing on NASDAQ, subject only to notice of issuance at or prior to the part Time of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this AgreementPurchase.
(sl) All outstanding optionsFINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 arrangements of the Delaware General Corporation Lawtransactions, contemplated hereby.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (LOCAL.COM)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company Holdings and the Transaction Parties hereunder NCL Corporation on the date hereof and hereof, at the Closing Time and on each Date time of Deliverysubscription and, as if applicable, at the additional time of subscription, the performance in all material respects by the Company Holdings and the Transaction Parties NCL Corporation of their respective obligations hereunder, hereunder (except as would have a de minimis effect) and the satisfaction of to the following further additional conditions at the Closing Time or on each Date of Delivery, as applicableprecedent:
(a) The Company shall furnish to the Underwriters you at the Closing Time and on each Date time of Delivery subscription and, if applicable, at the additional time of subscription, an opinion letter and a negative assurance letter of Mayer, Brown, O’Melveny & ▇▇▇▇▇ & Maw LLP, counsel for the CompanyHoldings and NCL Corporation, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, and dated the Closing Time and time of subscription or the additional time of subscription, as the case may be, with executed copies for each Date of Delivery and Underwriter, substantially to in the effect form as set forth on in Exhibit B hereto.
(b) The Company shall furnish to the Underwriters you at the Closing Time and on each Date time of Delivery subscription and, if applicable, at the additional time of subscription, an opinion of Mayer, Brown, ▇▇▇▇▇▇ & Maw LLP▇▇▇▇▇▇, special tax counsel for the CompanySenior Vice President and General Counsel of Holdings and NCL Corporation, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, and dated the Closing Time and time of subscription or the additional time of subscription, as the case may be, with executed copies for each Underwriter, substantially to in the effect form as set forth on in Exhibit C hereto.
(c) The Company shall furnish to the Underwriters you at the Closing Time and on each Date time of Delivery subscription and, if applicable, at the additional time of subscription, an opinion of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Limited, LLP, Maryland Bermuda counsel for the CompanyHoldings and NCL Corporation, which opinion(s) shall be addressed to the Underwriters, and dated the Closing Time and time of subscription or the additional time of subscription, as the case may be, with executed copies for each Date of Delivery and Underwriter, substantially to in the effect form as set forth on in Exhibit D hereto.
(d) The Company shall furnish to the Underwriters you at the Closing Time and on each Date time of Delivery subscription and, if applicable, at the additional time of subscription, an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇& Co LLP, ▇▇.English counsel for Holdings and NCL Corporation, Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, and dated the Closing Time and time of subscription or the additional time of subscription, as the case may be, with executed copies for each Date of Delivery and Underwriter, substantially to in the effect form as set forth on in Exhibit E hereto.
(e) SFP You shall furnish have received from PricewaterhouseCoopers LLP letters dated, respectively, the date of this Agreement, the date of the Prospectus, the time of subscription and, if applicable, the additional time of subscription, and addressed to the Underwriters (with executed copies for each Underwriter) in the forms reasonably satisfactory to UBS and Barclays, which letters shall cover, without limitation, the various financial disclosures contained in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any.
(f) You shall have received at the Closing Time and on each Date time of Delivery an subscription and, if applicable, at the additional time of subscription, the favorable opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as dated the time of subscription or the date additional time of this Agreement, the Closing Time and each Date of Deliverysubscription, as the case may be, addressed to the Representative, in form and substance reasonably satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration StatementRepresentatives.
(hg) The Representative You shall have received at the Closing Time and on each Date time of Delivery subscription and, if applicable, at the additional time of subscription, the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPGlobal, Bermuda counsel for the Underwriters, dated the Closing Time time of subscription or such Date the additional time of Deliverysubscription, addressed to as the Representative and case may be, in form and substance reasonably satisfactory to the RepresentativeRepresentatives.
(h) [reserved]
(i) No amendment or supplement The Registration Statement, the Exchange Act Registration Statement and any registration statement required to be filed, prior to the Registration Statement sale of the Shares, under the Act pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act or the Exchange Act, as the case may be. If Rule 430A under the Act is used, the Prospectus shall have been filed with the Commission pursuant to which Rule 424(b) under the Underwriters shall have objected in writingAct at or before 5:30 P.M., New York City time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Act).
(j) Prior to and at the Closing Time and each Date time of Delivery (i) subscription, and, if applicable, the additional time of subscription, no stop order suspending with respect to the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been issued under the Act or proceedings initiated under Section 8(d) or threatened, by the Commission, and no suspension 8(e) of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingAct.
(k) All filings with The Company will, at the Commission required by Rule 424 under time of subscription and, if applicable, at the Securities Act additional time of subscription, deliver to have been filed by you a certificate of its President and Chief Executive Officer and its Executive Vice President and Chief Financial Officer confirm, dated the Closing Time shall have been made within time of subscription or the applicable additional time period prescribed for such filing by such Ruleof subscription, as the case may be, in the form attached as Exhibit F hereto.
(l) Between The Company will, at the time of execution subscription and, if applicable, at the additional time of this Agreement subscription, deliver to you a certificate of its Executive Vice President and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, Chief Financial Officer regarding certain financial information in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement, Preliminary Prospectuses and Prospectus, dated the time of subscription or the additional time of subscription, as the case may be, in a form reasonably acceptable to the Representatives.
(m) You shall have received each of the signed Lock-Up Agreements referred to in Section 3(u) hereof, and each such Lock-Up Agreement shall be in full force and effect at the time of subscription and the additional time of subscription, as the case may be.
(n) The Shares shall have been approved for listing in quotation on the NYSENASDAQ, subject only to notice of issuance and evidence of satisfactory distribution at or prior to the time of subscription or the additional time of subscription, as the case may be.
(no) The NASD FINRA shall not have raised any objection with respect to the fairness and or reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officerunderwriting, director, and 1% or greater stockholder other arrangements of the Company and Aames Financial Itransactions, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreementcontemplated hereby.
(p) The Company and each Transaction Party shallYou shall have received evidence, at the Closing Time and on each Date of Delivery, deliver reasonably satisfactory to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. providedRepresentatives, that the certificate delivered by Company has consummated the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPCorporate Reorganization.
(q) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Norwegian Cruise Line Holdings Ltd.)
Conditions of the Underwriters’ Obligations. (a) The obligations of the Underwriters hereunder to purchase Shares at on the First Closing Time Date or on each Date of DeliveryOption Closing Date, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement and the Power of Attorney on the date hereof and at on the First Closing Time Date and on each Date of DeliveryOption Closing Date, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective covenants and other obligations hereunder, hereunder and under the Custody Agreement and the Power of Attorney and to the satisfaction of the following further conditions at the First Closing Time Date or on each Date of DeliveryOption Closing Date, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at on the First Closing Time Date and on each Option Closing Date of Delivery an opinion of MayerBaker, BrownDonelson, Bearman, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇▇▇, PC, counsel for the Company and the Subsidiaries, in substantially the form attached hereto as Exhibit D and addressed to the Underwriters and dated the First Closing Date and each Option Closing Date, as applicable, and the final form and substance of each such opinion shall be satisfactory to Hunton & ▇▇▇▇▇▇▇▇, counsel for the Underwriters.
(gc) Each Selling Stockholder shall furnish to the Underwriters at the First Closing Date and on each Option Closing Date an opinion of counsel for the Selling Stockholders, in substantially the form attached hereto as Exhibit E, addressed to the Underwriters and dated the First Closing Date and each Option Closing Date, as applicable, the form and substance of which shall be satisfactory to Hunton & ▇▇▇▇▇▇▇▇ LLP.
(d) The Representative Underwriters shall have received from Ernst & Young LLP KPMG LLP, letters dated, respectively, as of the date of this Agreement, the First Closing Time Date and each Date of DeliveryOption Closing Date, as the case may be, addressed to the RepresentativeUnderwriters, in form and substance satisfactory to the RepresentativeRepresentative and counsel for the Underwriters, relating containing statements to the financial statements, including any pro forma financial statements, effect that they are independent accountants with respect to the Company within the meaning of Rule 101 of the Company AICPA's Code of Professional Conduct, and statements and information of the type ordinarily included in accountant's "comfort letters" to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement and the Subsidiaries, Prospectus (and the Representative shall have received an additional six conformed copies of such other matters customarily covered by comfort letters issued in connection with registered public offerings. accountants' letter for each of the several Underwriters); In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems and counsel for the Underwriters deem such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the RepresentativeRepresentative and counsel for the Underwriters, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) At the First Closing Date and each Option Closing Date, the Representative shall have received from KPMG LLP, independent public or certified public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representative and counsel for the Underwriters, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (d) of this Section 6, except that the specified date referred to therein for the carrying out of procedures shall be no more than two business days prior to the First Closing Date or Option Closing Date, as the case may be (and the Representative shall have received an additional six conformed copies of such accountants' letter for each of the several Underwriters).
(f) The Representative shall have received at the First Closing Time Date and on each Date of Delivery Option Closing Date, as applicable, the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the First Closing Time Date or such Date of DeliveryOption Closing Date, addressed to the Representative Underwriters and in form and substance satisfactory to the Representative.
(ig) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(jh) Prior to the First Closing Time Date and each Option Closing Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 any post-effective amendment to the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issuedissued or is in effect, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative and counsel to the Underwriters; and (iii) none of the Registration Statement, Statement and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(ki) All filings Prior to the First Closing Date and each Option Closing Date, the Company shall have filed the Prospectus with the Commission (including the information required by Rule 424 430A under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430A, and such post-effective amendment shall have become effective; or, if the Company elected to rely upon Rule 434 under the Securities Act to have been filed by and obtained the Closing Time Representative' consent thereto, the Company shall have been made filed a term sheet with the Commission in the manner and within the applicable time period prescribed for such filing required by such RuleRule 424(b).
(lj) Between the time of execution of this Agreement and the First Closing Time Date or the relevant Option Closing Date of Delivery (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s 's sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in on the NYSENew York Stock Exchange.
(nl) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(om) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder shareholder and each officer and director of the Company and Aames Financial I, substantially in the form of Exhibit A B attached hereto, and such letter lock-up agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pn) The Company and each Transaction Party shallRepresentative shall have received, at the First Closing Time Date and on each Date of DeliveryOption Closing Date, deliver to the Underwriters a certificate of its Chairman duly authorized officers of the BoardCompany and the Operating Partnership, Chief Executive Officer, President, Chief Operating Officer dated as of such First Closing Date or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableOption Closing Date, to the effect that the signers of such certificates have carefully examined the Prospectus, any amendment or supplement to the Prospectus and this Agreement, and that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themthereto, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 Statement and the Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or the capital stock, limited liability company membership interests or units of limited partnership interest of any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided.
(o) The Representative shall receive, that at the First Closing Date and on each Option Closing Date, a certificate delivered of the Secretary of the Company certifying as to (i) the Articles of Amendment and any amendments thereto, (ii) the Bylaws and any amendments thereto, (iii) resolutions of the Board of Directors of the Company authorizing the execution and delivery of this Agreement and the other offering documents, (iv) the Certificate of Limited Partnership of the Operating Partnership and the Partnership Agreement and any amendments thereto, (v) correspondence with the Commission, (vi) a specimen Common Shares certificate, (vii) the number of Common Shares authorized and reserved for issuance by the applicable officers Company and (viii) the minute books of SFP may omit the matters Company.
(p) Each Selling Stockholder will, at the First Closing Date and on each Option Closing Date, deliver to the Underwriters a certificate, to the effect that:
(i) the representations and warranties of such Selling Stockholder set forth in subclauses this Agreement, the Custody Agreement and the Power of Attorney are true and correct as of such date as if made on such date; and
(ii) such Selling Stockholder has complied with all the agreements and (iv) abovesatisfied all the conditions on its part to be performed or satisfied hereunder and under this Agreement, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Custody Agreement and may limit certification and may limit certification the Power of the matters set forth in subclause (iii) above Attorney at or prior to information, facts and events relating to SFPsuch date.
(q) The On the date hereof, the Company and the Selling Stockholders shall have furnished for review by the Representative copies of the Custody Agreement and the Power of Attorney executed by each Transaction Partyof the Selling Stockholders and such further information, certificates and documents as the Representative may reasonably request.
(r) The Company, the Operating Partnership and the Selling Stockholders, as applicable, shall have furnished to the Underwriters such other documents documents, certificates and certificates opinions as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company Company, the Operating Partnership and the Selling Stockholders contained herein, in the Custody Agreement and in the Power of Attorney, and the performance by the Company Company, the Operating Partnership and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the First Closing Time Date or any Date of DeliveryOption Closing Date, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Medical Properties Trust Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Stockholder hereunder and under the Power of Attorney on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholder of their respective obligations hereunder, hereunder and under the Power of Attorney and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The the Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time, as applicable, an opinion of Mayer, Brown, ▇▇▇▇ & Maw Sidley Austin LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed counsel satisfactory to the Underwriters, who may be an officer of the Company, addressed to the Underwriters and dated as of the Closing Time and each Date of Delivery Option Closing Time, as applicable, and in form and substance satisfactory to ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters, substantially to in the effect form set forth on Exhibit B hereto.Exhibits C-1 and C-2, respectively;
(b) The Company the Selling Stockholder shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction PartiesOption Closing Time, as to certain tax mattersapplicable, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. & ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFPthe Selling Stockholder, which opinion(s) shall be and Hunton & ▇▇▇▇▇▇▇▇ LLP, special Virginia counsel for the Selling Stockholder, addressed to the Underwriters, Underwriters and dated as of the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger AgreementTime, which opinions and reliance letters shall be as applicable, in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters., substantially in the form set forth on Exhibit D hereto;
(gc) The on the date of this Agreement and at the Closing Time and each Option Closing Time, as applicable, the Representative shall have received from Ernst & Young PricewaterhouseCoopers LLP letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma statements and certain financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. ; provided, however, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be; In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowingsborrowings to the amounts disclosed in the Registration Statement, Disclosure Package and Prospectus, it shall be a further condition to the obligations of the Underwriters that (Ai) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (Bii) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.;
(hd) The the Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Chance US LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.;
(ie) No the Registration Statement shall have become effective;
(f) no amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.;
(jg) Prior prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(kh) All all filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.;
(li) Between between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or any prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.;
(mj) The the Shares shall have been approved for listing in the NYSE.included on The Nasdaq Global Select Market;
(nk) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.;
(ol) The the Representative shall have received lock-up agreements from each officer, director, officer and 1% or greater stockholder director of the Company listed on Schedule IV and Aames Financial Ithe Selling Stockholder, in the form of Exhibit A B attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.;
(pm) The Company and each Transaction Party shallthe Selling Stockholder will, at the Closing Time and on each Date Option Closing Time, as applicable, deliver to the Underwriters a certificate of Deliveryits President, Secretary or Treasurer, to the effect that the representations and warranties of the Selling Stockholder set forth in this Agreement are true and correct, as if made on and as of the Closing Time or any Option Closing Time, as applicable, and the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time or any Option Closing Time, as applicable;
(n) the Company will, at the Closing Time and on each Option Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, President and Chief Executive Officer, President, Chief Operating Officer or Executive Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableCounsel, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;; and
(iii) the signer of such certificate has carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(ivo) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction PartySelling Stockholder, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained hereinherein and in the Power of Attorney, and the performance by the Company and the Transaction Parties Selling Stockholder of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. (a) The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on at each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on at each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective its obligations hereunder, hereunder and the satisfaction of the following further conditions at the Closing Time or on at each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time an opinion of MayerStephen L. Kibblehouse, Brown, Senior Vice President and General Counsel fo▇ ▇▇▇ ▇▇▇▇▇▇▇ & Maw LLP▇▇▇ ▇▇▇ Subsidiaries, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, Underwriters and dated the Closing Time and substantially at each Option Closing Time, in form and substance satisfactory to Lord, Bissell & Brook LLP, counsel for the effect Underwriters, as set forth on in Exhibit C B attached hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time an opinion of LeBoeuf, Lamb, Greene & MacRae LLP, counsel for the Company and the Subsidiaries, a▇▇▇▇▇▇ed ▇▇ ▇▇▇ Underwriters and dated the Closing Time and at each Option Closing Time, in form and substance satisfactory to Lord, Bissell & Brook LLP, counsel for the Underwriters, as set forth in Exhibit C attached hereto.
(d) The Representatives shall have received from Johnson Lambert & Co. and BDO Seidman, LLP, respectively, letters da▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇ate of this Agr▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of DeliveryTime, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating to the financial statements, including any pro forma financial statements, statements of the Company and the Subsidiaries, in the case of Johnson Lambert & Co., and of Preserver and its subsidiaries in the ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇dman, LLP, and such other matters customarily covered by comfort letters ▇▇▇▇▇▇▇ issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes change in indebtednessthe capital stock, increase in long-term debt or any decreases in total assets stockholders' equity, operating income or retained earnings net income of the Company or increases in borrowingsPreserver, as applicable, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company or Preserver, as applicable, as to the significance thereof, unless the Representative Representatives deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the RepresentativeRepresentatives, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative Representatives shall have received at the Closing Time and on at each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ Lord, Bissell & ▇▇▇▇▇▇▇ Brook LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(if) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus any document in the Disclosure Package has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; (iii) the Registration Statement or any amendment thereto, in each case as of their respective effective dates, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iiiiv) none of the Registration StatementProspectus, the Disclosure Package or any Issuer Free Writing Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time, there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives' sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The All required filings with respect to the Shares shall have been approved for listing in made with the NYSENasdaq Global Select Market.
(nk) The NASD shall not have raised any confirmed in writing that it has decided to raise no objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsarrangements and shall not have raised any such objection after the date of such confirmation.
(ol) The Representative Representatives shall have received lock-up agreements from each officer, director, officer and 1% or greater stockholder director of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallwill, at the Closing Time and on at each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Financial Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“"Incorporated Document”") has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to thereto and any of themIncorporated Documents, when such Incorporated Documents became effective or were filed with the Commission, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, individually which has or in the aggregate, has would be likely to have a Material Adverse Effect. provided, that the certificate delivered other than losses occurring under policies of insurance or reinsurance agreements issued by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPTICNY or TNIC.
(qn) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or and any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Company, on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, (ii) the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and (iii) the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer, Brown, ▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇ LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery Option Closing Time and substantially in form and substance reasonably satisfactory to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the effect set forth on Exhibit B heretoUnderwriters.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayerthe general counsel of the Company, Brownaddressed to the Underwriters and dated the Closing Time and each Option Closing Time and in form and substance reasonably satisfactory to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & Maw ▇▇▇▇ LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters on the date hereof, at the Closing Time and on each Date Option Closing Time a written certificate executed by the chief financial officer of Delivery an opinion the Company, the form of which is attached as Exhibit B.
(d) On the date of this Agreement and at the Closing Time and each Option Closing Time (if applicable), the Representative shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, ▇ LLP letters dated the Closing Time respective dates of delivery thereof and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain Other Requesting Parties” issued by the PCAOB with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company and the Subsidiariesother members of the Company Group included in the Registration Statement, any Statutory Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three (3) business days prior to such Closing Time or such Option Closing Time, as the case may be. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance reasonably satisfactory to the Representative.
(if) No amendment or supplement to the Registration Statement Statement, any Statutory Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have reasonably objected in writingwriting prior to its filing unless such objection has been withdrawn.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Statutory Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; , (ii) all requests for additional information on the part of the Commission shall have been complied with; and with to the reasonable satisfaction of the Representative, (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iv) any Statutory Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rulerule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Option Closing Time:
(i) there shall not have been any Material Adverse Change Effect, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any other member of the SubsidiariesCompany Group, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement; and
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any other member of the Company Group or any of their securities or indebtedness by any “nationally recognized statistical rating organization” as such term is defined by the Commission for purposes of Section 3(a)(62) of the Securities Act.
(mj) The Shares shall have been approved for listing in the NYSEon NASDAQ.
(nk) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative shall have received lock-up agreements from each officeras set forth in Section 4(s).
(m) The Company shall have delivered to the Underwriters a certificate, director, and 1% or greater stockholder executed by the Secretary of the Company and Aames Financial Idated as of the Closing Time and each Option Closing Time (if any) as to (i) the resolutions adopted by the Company’s board of directors in form and substance reasonably acceptable to the Representative, in (ii) the form Company’s certificate of Exhibit A attached heretoincorporation, as amended and such letter agreements shall be in full force and effect; provided(iii) the Company’s bylaws, howeveras amended, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (each as in effect on at the date hereof) Closing Time and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreementeach Option Closing Time (if any).
(pn) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Memberto the effect set forth in Section 6(i)(ii) hereof, as applicable, and further to the effect that:
(i) for the representations period from and after the date of this Agreement and prior to the Closing Time or the Option Closing Time, as applicable, there has not occurred any Material Adverse Effect;
(ii) the representations, warranties and covenants of the Company set forth in Section 3 hereof were true and correct as of the Transaction Parties in this Agreement date hereof and are true and correctcorrect as of the Closing Time or the Option Closing Time, as if applicable, with the same force and effect as though expressly made on and as of the date hereofClosing Time or the Option Closing Time, and as applicable; and
(iii) the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto Closing Time or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4Option Closing Time, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP included in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPAgreement.
(qo) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, (i) the representations, warranties and statements of the Company contained herein, and (ii) the performance by the Company and the Transaction Parties of their its respective covenants contained herein and therein, and (iii) the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters Underwriter hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters Underwriter at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Option Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇▇ & Shohl, LLP, Maryland counsel for the Company, which opinion(s) shall be Company and the Bank addressed to the Underwriters, Underwriter and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough LLP, Washington, DC, counsel for Underwriters.the Underwriter, to the effect set forth substantially in Exhibit B.
(gb) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of On the date of this Agreement, Agreement and at the Closing Time and each Date Option Closing Time (if applicable), the Underwriter shall have received from ▇.▇. Cloud & Co. L.L.P. letters dated the respective dates of Delivery, as the case may be, delivery thereof and addressed to the Representative, in form Underwriter and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated heretofore approved by the Registration StatementUnderwriter.
(hc) The Representative Underwriter shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative Underwriter and in form and substance satisfactory to the RepresentativeUnderwriter.
(id) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Underwriter shall approve.
(e) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Underwriter shall have objected in writing.
(jf) Prior to the Closing Time and each Date of Delivery Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Underwriter; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kg) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or any prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the SubsidiariesBank, in each case, which in the RepresentativeUnderwriter’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mi) The Shares shall have been approved for listing inclusion in The Nasdaq Capital Market subject only to notice of issuance at or prior to the NYSEtime of purchase.
(nj) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ok) The Representative Underwriter shall have received lockLock-up agreements from each officer, director, and 1% or greater stockholder Up Letter Agreements contemplated by Section 4(v) of the Company and Aames Financial I, in the form of Exhibit A attached hereto, this Agreement and such letter agreements Lock-Up Letter Agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pl) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters Underwriter a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to thereto and any of themIncorporated Documents, when such Incorporated Documents became effective or were filed with the Commission, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries Bank considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries Bank considered as one enterprise, incurred by the Company or the SubsidiariesBank, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary the Bank that is material to the Company and the Subsidiaries Bank considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiarythe Bank, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qm) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters Underwriter such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters Underwriter may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (LCNB Corp)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at on the First Closing Time Date or on each Date of DeliveryOption Closing Date, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement and the Power of Attorney on the date hereof and at on the First Closing Time Date and on each Date of DeliveryOption Closing Date, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective covenants and other obligations hereunder, hereunder and under the Custody Agreement and the Power of Attorney and to the satisfaction of the following further conditions at the First Closing Time Date or on each Date of DeliveryOption Closing Date, as applicable:
(a) The Company shall furnish to the Underwriters at on the First Closing Time Date and on each Option Closing Date (i) opinions of Delivery an opinion of MayerSkadden, BrownArps, Slate, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company and the Subsidiaries in substantially the form attached hereto as Exhibits D and E and (ii) an opinion of DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP, Maryland counsel for the Company and the Subsidiaries in substantially the form attached hereto as Exhibit F, each addressed to the Underwriters and dated the First Closing Date and each Option Closing Date, as applicable, and the final form and substance of each such opinion shall be satisfactory to Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
(gb) Each Selling Stockholder shall furnish to the Underwriters at the First Closing Date and on each Option Closing Date an opinion of counsel for the Selling Stockholders in substantially the form attached hereto as Exhibit G, addressed to the Underwriters and dated the First Closing Date, the form and substance of which shall be satisfactory to Hunton & ▇▇▇▇▇▇▇▇ LLP.
(c) The Representative Underwriters shall have received from Ernst & Young LLP LLP, letters dated, respectively, as of the date of this Agreement, the First Closing Time Date and each Date of DeliveryOption Closing Date, as the case may be, addressed to the RepresentativeUnderwriters, in form and substance satisfactory to the RepresentativeRepresentatives and counsel for the Underwriters, relating containing statements to the financial statements, including any pro forma financial statements, effect that they are independent accountants with respect to the Company within the meaning of Rule 101 of the Company AICPA’s Code of Professional Conduct, and statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement and the Subsidiaries, Prospectus (and the Representative shall have received an additional six conformed copies of such other matters customarily covered by comfort letters issued in connection with registered public offerings. accountants’ letter for each of the several Underwriters); In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of from the Company as to the significance thereof, unless the Representative deems Representatives and counsel for the Underwriters deem such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the RepresentativeRepresentatives and counsel for the Underwriters, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hd) At the First Closing Date and each Option Closing Date, the Representatives shall have received from Ernst & Young LLP, independent public or certified public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives and counsel to the Underwriters, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (c) of this Section 6, except that the specified date referred to therein for the carrying out of procedures shall be no more than two business days prior to the First Closing Date or Option Closing Date, as the case may be (and the Representatives shall have received an additional six conformed copies of such accountants’ letter for each of the several Underwriters).
(e) The Representative Representatives shall have received at the First Closing Time Date and on each Date of Delivery Option Closing Date, as applicable, the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the First Closing Time Date or such Date of DeliveryOption Closing Date, addressed to the Representative Underwriters and in form and substance satisfactory to the RepresentativeRepresentatives.
(if) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jg) Prior to the First Closing Time Date and each Option Closing Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 any post-effective amendment to the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issuedissued or is in effect, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives and counsel to the Underwriters; and (iii) none of the Registration Statement, Statement and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(kh) All filings Prior to the First Closing Date and each Option Closing Date, the Company shall have filed the Prospectus with the Commission (including the information required by Rule 424 430A under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430A, and such post-effective amendment shall have become effective; or, if the Company elected to rely upon Rule 434 under the Securities Act to have been filed by and obtained the Closing Time Representatives’ consent thereto, the Company shall have been made filed a term sheet with the Commission in the manner and within the applicable time period prescribed for such filing required by such RuleRule 424(b).
(li) Between the time of execution of this Agreement and the First Closing Time Date or the relevant Option Closing Date of Delivery (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which that is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which that in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing in on the NYSENew York Stock Exchange.
(nk) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative Representatives shall have received lock-up agreements from each officer, director, officer and 1% or greater stockholder director of the Company and Aames Financial I, substantially in the form of Exhibit A B attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallRepresentatives shall have received, at the First Closing Time Date and on each Date of DeliveryOption Closing Date, deliver to the Underwriters a certificate of its Chairman duly authorized officers of the BoardCompany and the Manager, Chief Executive Officer, President, Chief Operating Officer dated as of such First Closing Date or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableOption Closing Date, to the effect that the signers of such certificates have carefully examined the Prospectus, any amendment or supplement to the Prospectus and this Agreement, and that:
(i) the representations and warranties of the Company and the Transaction Parties Manager in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themthereto, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which that has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 Statement and the Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or the capital stock, limited liability company membership interests or units of limited partnership interest of any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which Subsidiary that has been sustained or will have been sustained which, individually or in the aggregate, that has a Material Adverse Effect. provided.
(n) The Representatives shall receive, that at the First Closing Date and on each Option Closing Date, a certificate delivered of the Secretary of the Company certifying as to (i) the Articles of Incorporation and any amendments thereto, (ii) the Bylaws and any amendments thereto, (iii) resolutions of the Board of Directors of the Company authorizing the execution and delivery of this Agreement and the other offering documents, (iv) the Certificate of Formation of the Manager and the limited liability company agreement and any amendments thereto, (v) [correspondence with the Commission], (vi) a specimen Common Shares certificate, (vii) the number of Common Shares authorized and reserved for issuance by the applicable officers Company and (viii) the minute books of SFP may omit the matters Company.
(o) Each Selling Stockholder will, at the First Closing Date and on each Option Closing Date, deliver to the Underwriters a certificate, to the effect that:
(i) the representations and warranties of such Selling Stockholder set forth in subclauses this Agreement, the Custody Agreement and the Power of Attorney are true and correct as of such date as if made on such date; and
(ii) such Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder and under this Agreement, the Custody Agreement and the Power of Attorney at or prior to such date.
(ivp) aboveOn the date hereof, may limit certification the Company and the Selling Stockholders shall have furnished for review by the Representatives copies of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Custody Agreement and may limit certification and may limit certification the Power of Attorney executed by each of the matters set forth in subclause (iii) above to Selling Stockholders and such further information, facts certificates and events relating to SFPdocuments as the Representatives may reasonably request.
(q) The Company Company, the Manager and each Transaction Partythe Selling Stockholders, as applicable, shall have furnished to the Underwriters such other documents documents, certificates and certificates opinions as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company Company, the Manager and the Selling Stockholders contained herein, in the Custody Agreement and in the Power of Attorney, and the performance by the Company Company, the Manager and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the First Closing Time Date or any Date of DeliveryOption Closing Date, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting Representatives shall receive, at the First Merger Closing Date and the Second Merger shall have been duly authorized by all necessary corporate action on the part each Option Closing Date, a certificate of the Company, each Subsidiary chief executive officer and each Transaction Party, as applicable; (B) as chief financial officer of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, Company in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) form attached hereto as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.Exhibit H.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters and the Independent Underwriter hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the respective representations and warranties on the part of the Company and the Transaction Parties hereunder each Selling Stockholder on the date hereof and hereof, at the Closing Time and on each Date of DeliveryPurchase and, as if applicable, at the additional time of purchase, the performance in all material respects by the Company and the Transaction Parties each Selling Stockholder of each of their respective obligations hereunder, hereunder and the satisfaction of to the following further additional conditions at the Closing Time or on each Date of Delivery, as applicableprecedent:
(a) The Company shall furnish to you and the Underwriters Independent Underwriter at the Closing Time and on each Date of Delivery Purchase and, if applicable, at the additional time of purchase, an opinion and negative assurance statement of MayerSimpson, Brown, Thacher & ▇▇▇▇▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the UnderwritersUnderwriters and the Independent Underwriter, and dated the Closing Time of Purchase or the additional time of purchase, as the case may be, with executed copies for each Underwriter and each Date of Delivery the Independent Underwriter, in form and substantially substance satisfactory to the effect set forth on Exhibit B heretoUBS.
(b) The Company shall furnish to you and the Underwriters Independent Underwriter at the Closing Time and on each Date of Delivery an Purchase and, if applicable, at the additional time of purchase, the opinion of Mayer, Brown, ▇▇▇▇ & Maw Dechert LLP, special tax counsel for the CompanySelling Stockholders, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters and the Independent Underwriters, and dated the Closing Time of Purchase or the additional time of purchase, as the case may be, with executed copies for each Underwriter and substantially the Independent Underwriter, in form and substance satisfactory to the effect set forth on Exhibit C heretoUBS.
(c) The Company shall furnish to you and the Underwriters Independent Underwriter at the Closing Time and on each Date of Delivery Purchase and, if applicable, at the additional time of purchase, an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, General Counsel and Chief Legal Officer and Secretary and General Counselof the Company, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the UnderwritersUnderwriters and the Independent Underwriter, and dated the Closing Time of Purchase or the additional time of purchase, as the case may be, with executed copies for each Underwriter and each Date the Independent Underwriter, in form and substance satisfactory to UBS.
(d) You and the Independent Underwriter shall have received from BDO USA LLP letters dated, respectively, the date of Delivery this Agreement, the Time of Purchase and, if applicable, the additional time of purchase, and substantially addressed to the effect set forth on Exhibit E heretoUnderwriters and the Independent Underwriter (with executed copies for each Underwriter and the Independent Underwriter) in the forms satisfactory to UBS, which letters shall cover, without limitation, the various financial disclosures in respect of the Company and its Subsidiaries contained in the Registration Statement, the Disclosure Package and the Prospectus.
(e) SFP You and the Independent Underwriter shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP▇▇▇▇▇▇ P.C. letters dated, special counsel for SFPrespectively, which opinion(s) shall be the date of this Agreement, the Time of Purchase and, if applicable, the additional time of purchase, and addressed to the UnderwritersUnderwriters and the Independent Underwriter (with executed copies for each Underwriter and the Independent Underwriter) in the forms satisfactory to UBS, dated which letters shall cover, without limitation, the Closing Time various financial disclosures in respect of Patriot Care Holdings, Inc. (f/k/a MCRS Holdings, Inc.) contained in the Registration Statement, the Disclosure Package and each Date of Delivery and substantially to the effect set forth on Exhibit F heretoProspectus.
(f) The Company You and the Independent Underwriter shall furnish to the Underwriters have received at the Closing Time and on each Date of Delivery a letter permitting them to rely upon Purchase and, if applicable, at the opinions given in connection with additional time of purchase, the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇, LLP, counsel for the Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as dated the Time of Purchase or the date additional time of this Agreement, the Closing Time and each Date of Deliverypurchase, as the case may be, addressed to the Representative, in form and substance reasonably satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration StatementUBS.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ig) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Underwriters you shall have reasonably objected as soon as practicable in writing.
(jh) The Registration Statement, the Exchange Act Registration Statement and any registration statement required to be filed, prior to the sale of the Shares, under the Act pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act or the Exchange Act, as the case may be. If Rule 430A under the Act is used, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New York City time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Act).
(i) (i) Prior to and at the Closing Time and each Date of Delivery (i) Purchase, and, if applicable, the additional time of purchase, no stop order suspending with respect to the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose all amendments thereto shall have been issued under the Act or proceedings initiated under Section 8(d) or threatened, by the Commission, and no suspension 8(e) of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurredAct; (ii) all requests for additional information on the part Registration Statement shall not, as of the Commission shall have been complied with; and (iii) none of the Registration StatementEffective Time, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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, therein not misleading.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofProspectus shall not, as of its date, the Registration Statement and Time of Purchase and, if applicable, the Prospectus, and the S-4 and any amendments or supplements to any additional time of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunderpurchase, as the case may bethen amended or supplemented, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates Disclosure Package shall not, as of which information is given the Applicable Time, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the Registration Statementlight of the circumstances under which they are made, S-4 not misleading; and Prospectus(v) none of the Permitted Free Writing Prospectuses, there has not been (a) any Material Adverse Changeif any, (b) any transaction that is and none of the Permitted Exempt Written Communications, if any, shall, as of the Applicable Time and considered together with the Disclosure Package, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the Company and the Subsidiaries considered as one enterprisestatements therein, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness light of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprisecircumstances under which they are made, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPmisleading.
(qj) The Company will, at the Time of Purchase and, if applicable, at the additional time of purchase, deliver to you and the Independent Underwriter a certificate of its Chief Executive Officer and its Chief Financial Officer, dated the Time of Purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit B hereto.
(k) The Selling Stockholders will, at the Time of Purchase and, if applicable, at the additional time of purchase, deliver to you a certificate signed by a Representative of the Selling Stockholders, dated the Time of Purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit C hereto.
(l) You shall have received each of the signed Lock-Up Agreements referred to in Section 3(bb) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Time of Purchase and the additional time of purchase, as the case may be.
(m) The Company and each Transaction Party, as applicable, Selling Stockholder shall have furnished to you and the Underwriters Independent Underwriter such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Statement, any Preliminary Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of Prospectus or any conditions contained herein or therein, Permitted Free Writing Prospectus as of the Closing Time or any Date of DeliveryPurchase and, if applicable, the additional time of purchase, as you or the Underwriters Independent Underwriter may reasonably request.
(r) (An) The Merger Agreement effecting the First Merger and the Second Merger Shares shall have been duly authorized by all necessary corporate action approved for listing on the part NYSE, subject only to notice of issuance and evidence of satisfactory distribution at or prior to the Company, each Subsidiary and each Transaction PartyTime of Purchase or the additional time of purchase, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreementcase may be.
(so) All outstanding optionsFINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, warrants or other securities exercisable or exchangeable for or convertible into shares arrangements of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstandingthe transactions, contemplated hereby.
(tp) None of SFP or any of its affiliates, Each Selling Stockholder shall have exercised to delivered to you a duly executed Power of Attorney and perfected a duly executed Custody Agreement, in each case in form and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Lawsubstance satisfactory to UBS.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicablePurchase, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and the satisfaction of to the following further additional conditions at the Closing Time or on each Date of Delivery, as applicableprecedent:
(a) The Company shall furnish to the Underwriters at the Closing Time of Purchase and on each Date the Additional Time of Delivery an opinion Purchase opinions of Mayer, Brown▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇-▇▇▇▇▇▇▇, Colt & Maw Mosle LLP, special counsel for the Company, and the Subsidiaries and each of General Counsel for the other Aames Transaction Parties, which opinion(s) shall be Company addressed to the Underwriters, dated and dated, respectively, the Closing Time of Purchase and each Date the Additional Time of Delivery Purchase, in form and substantially substance reasonably satisfactory to the effect Underwriters, as to the matters set forth on in Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time of Purchase and on each Date the Additional Time of Delivery Purchase an opinion of Mayer, Brown, ▇▇▇▇ & Maw Stoel Rives LLP, special tax intellectual property counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated and dated, respectively, the Closing Time of Purchase and substantially the Additional Time of Purchase, in form and substance reasonably satisfactory to the effect Underwriters, as to the matters set forth on in Exhibit C hereto.
(c) The Company Underwriters shall furnish have received from KPMG LLP letters dated, respectively, the date of this Agreement, the Time of Purchase and the Additional Time of Purchase and addressed to the Underwriters in forms reasonably satisfactory to the Underwriters, which letters shall cover, without limitation, the various financial disclosures contained in the Registration Statement, the Prospectus and the Permitted Free Writing Prospectuses, if any.
(d) The Underwriters shall have received at the Closing Time and on each Date of Delivery an Purchase, the favorable opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as dated the Time of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativePurchase, in form and substance reasonably satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration StatementUnderwriters.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(jf) The Final Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., Boston time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Act).
(g) Prior to and at each of the Closing Time of Purchase and each Date the Additional Time of Delivery Purchase, (i) no stop order suspending with respect to the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been issued under the Act or proceedings initiated under Section 8(d) or threatened, by the Commission, and no suspension 8(e) of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurredAct; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement and all amendments thereto shall not contain an untrue statement of a material fact or 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, therein not misleading.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when neither the Registration Statement and S-4 became effective and at all times subsequent Prospectus nor amendment or supplement thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not shall include any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(h) The Company will, at the Time of Purchase and the Additional Time of Purchase deliver to the respective dates as Underwriters a certificate of which information is given its Chief Executive Officer and its Chief Financial Officer, dated, respectively, the Time of Purchase and the Additional Time of Purchase, in the Registration Statement, S-4 form and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material substance reasonably satisfactory to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause Underwriters.
(i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification The Underwriters shall have received each of the matters set forth signed Lock-Up Agreements referred to in subclause (iiiSection 3(jj) above to informationhereof, facts and events relating to SFPeach such Lock-Up Agreement shall be in full force and effect at the Time of Purchase and the Additional Time of Purchase.
(qj) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the ProspectusStatement, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of Prospectus or any conditions contained herein or therein, Permitted Free Writing Prospectus as of the Closing Time or any Date of Delivery, Purchase and the Additional Time of Purchase as the Underwriters may reasonably request.
(r) (Ak) The Merger Agreement effecting the First Merger and the Second Merger Shares shall have been duly authorized by all necessary corporate action approved for listing on NASDAQ, subject only to notice of issuance at or after the part Time of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this AgreementPurchase.
(sl) All outstanding optionsFINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 arrangements of the Delaware General Corporation Lawtransactions, contemplated hereby.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Stockholder hereunder and under the Custody Agreement and Power of Attorney on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholder of their respective obligations hereunder, hereunder and under the Custody Agreement and Power of Attorney and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time (i) an opinion of Mayer, Brown, ▇▇▇▇▇▇▇ & Maw LLPAssociates, Pittsburgh, Pennsylvania, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and (ii) opinion of foreign counsel, each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery Option Closing Time and substantially in form and substance satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough LLP, Washington, DC, counsel for the Underwriters, to the effect set forth on substantially in Exhibit B hereto.C.
(b) The Company Selling Stockholder shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of [▇▇▇▇▇▇▇▇ & Associates, LLPPittsburgh, Maryland Pennsylvania], counsel for the CompanySelling Stockholder, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough LLP, counsel for the Underwriters, stating that:
(i) the Selling Stockholder has been duly organized and is validly existing in good standing under the laws of its respective jurisdiction of organization with full power and authority to execute and deliver this Agreement and the Custody Agreement and Power of Attorney, and to consummate the transactions described in this Agreement and the Custody Agreement and Power of Attorney;
(ii) the execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney by the Selling Stockholder, and the consummation by the Selling Stockholder of the transactions contemplated by this Agreement and by the Custody Agreement and Power of Attorney, do not and will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of or default under), (i) any provisions of the articles of incorporation, charter, partnership agreement, trust document, by-laws or other similar governing documents, as applicable, of the Selling Stockholder, (ii) any provision of any material license, indenture, mortgage, deed of trust, loan, credit or other agreement or instrument to which the Selling Stockholder is a party or by which its properties may be bound or affected, and which is known to such counsel, (iii) any law or regulation binding upon or applicable to the Selling Stockholder or any of its properties or assets, or (iv) any decree, judgment or order known to such counsel and applicable to the Selling Stockholder, except for such conflicts, breaches or defaults which, individually or in the aggregate, would not have a material adverse effect on the ability of the Selling Stockholder to sell and deliver the Shares to the Underwriters pursuant to this Agreement, free and clear of any pledge, lien, encumbrance, security interest, or other claim;
(iii) this Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by the Selling Stockholder and each is a legal, valid and binding agreement of the Selling Stockholder enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity, and except that enforceability of the indemnification and contribution provisions set forth in Section 11 of this Agreement may be limited by the federal or state securities laws of the United States or public policy underlying such laws;
(iv) upon the sale and delivery of the Shares by the Selling Stockholder against receipt of payment therefor, in each case in accordance with the terms of this Agreement and the Custody Agreement and Power of Attorney, the Underwriters will acquire good and marketable title to such Shares, free and clear of any pledge, lien, encumbrance, security interest, or other claim; and
(v) no approval, authorization, consent or order of or filing with any federal or state governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney, the consummation of the transaction contemplated herein and therein, and the sale and delivery of the Shares by the Selling Stockholder as contemplated herein and therein, other than such as have been obtained or made under the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations, and except that such counsel need express no opinion as to any necessary qualification under the state securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters.
(gc) The On the date of this Agreement and at the Closing Time and each Option Closing Time (if applicable), the Representative shall have received from Ernst & Young LLP ParenteBeard LLC letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered in forms heretofore approved by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hd) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or any prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s ’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing inclusion in The Nasdaq Global Market subject only to notice of issuance at or prior to the NYSEtime of purchase.
(nk) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative shall have received lockLock-up agreements from each officer, director, and 1% or greater stockholder Up Letter Agreements contemplated by Section 5(v) of the Company and Aames Financial I, in the form of Exhibit A attached hereto, this Agreement and such letter agreements Lock-Up Letter Agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided.
(n) The Selling Stockholder will on each Option Closing Time deliver to the Underwriters a certificate, that to the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause effect that:
(i) above to the representations, representations and warranties and agreements of SFP the Selling Stockholder set forth in this Agreement and may limit certification in the Custody Agreement and may limit certification Power of Attorney are true and correct as of such date; and
(ii) the matters set forth in subclause (iii) above Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to information, facts be performed or satisfied hereunder and events relating under the Custody Agreement and Power of Attorney at or prior to SFPthe date hereof.
(qo) The Company and each Transaction Party, as applicable, the Selling Stockholder shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained hereinherein and in the Custody Agreement and Power of Attorney, and the performance by the Company and the Transaction Parties Selling Stockholder of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (ExOne Co)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicablePurchase, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and the satisfaction of to the following further additional conditions at the Closing Time or on each Date of Delivery, as applicableprecedent:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Purchase an opinion and negative assurance statement of Mayer, Brown, Winston & ▇▇▇▇▇▇ & Maw LLP, special counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, and dated the Closing Time of Purchase, in form and each Date of Delivery and substantially substance satisfactory to the effect Underwriters, as to the matters set forth on in Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Purchase an opinion of Mayer, Brown, ▇▇▇▇ & Maw McGuireWoods LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, and dated the Closing Time of Purchase, in form and substantially substance satisfactory to the effect Underwriters, as to the matters set forth on in Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Purchase an opinion of ▇▇▇▇▇▇▇, LLP, Maryland special counsel for the CompanyCompany with respect to its operations in Malaysia, which opinion(s) shall be addressed to the Underwriters, and dated the Closing Time of Purchase, in form and each Date of Delivery and substantially substance satisfactory to the effect Underwriters, as to the matters set forth on in Exhibit D hereto.
(d) The Company Underwriters shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of have received from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, Agreement and the Closing Time of Purchase and each Date of Delivery, as the case may be, addressed to the RepresentativeUnderwriters in the forms satisfactory to the Underwriters, which letters shall cover the various financial disclosures contained in the Registration Statement, the Prospectus and the Permitted Free Writing Prospectuses, if any.
(e) The Underwriters shall have received at the Time of Purchase, the favorable opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, dated the Time of Purchase, in form and substance reasonably satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration StatementUnderwriters.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(if) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(jg) The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., Boston time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Act).
(h) Prior to and at the Closing Time and each Date of Delivery Purchase, (i) no stop order suspending with respect to the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been issued under the Act or proceedings initiated under Section 8(d) or threatened, by the Commission, and no suspension 8(e) of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurredAct; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement and all amendments thereto shall not contain an untrue statement of a material fact or 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, therein not misleading.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when neither the Registration Statement and S-4 became effective and at all times subsequent Prospectus nor any amendment or supplement thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not shall include any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent neither the Disclosure Package, nor any amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the respective dates as of which information is given statements therein, in the Registration Statementlight of the circumstances under which they are made, S-4 not misleading; and Prospectus(v) none of the Permitted Free Writing Prospectuses, there has not been (a) any Material Adverse Changeif any, (b) any transaction that is shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the Company and the Subsidiaries considered as one enterprisestatements therein, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness light of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprisecircumstances under which they are made, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause misleading.
(i) above The Company will, at the Time of Purchase, deliver to the representationsUnderwriters a certificate of its Chief Executive Officer and its Chief Financial Officer, warranties and agreements dated the Time of SFP Purchase, in this Agreement and may limit certification and may limit certification of a form satisfactory to the matters set forth in subclause (iii) above to information, facts and events relating to SFPUnderwriters.
(qj) The Underwriters shall have received each of the signed Lock-Up Agreements referred to in Section 3(jj) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Time of Purchase.
(k) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the ProspectusStatement, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of Prospectus or any conditions contained herein or therein, Permitted Free Writing Prospectus as of the Closing Time or any Date of Delivery, Purchase as the Underwriters may reasonably request.
(r) (Al) The Merger Agreement effecting the First Merger and the Second Merger Shares shall have been duly authorized by all necessary corporate action approved for listing on NASDAQ, subject only to notice of issuance at or prior to the part Time of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this AgreementPurchase.
(sm) All outstanding optionsFINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 arrangements of the Delaware General Corporation Lawtransactions, contemplated hereby.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Transaction Parties Advisor hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicableapplicable (as if made on and as of such date), the performance in all material respects by the Company Company, the Operating Partnership and the Transaction Parties Advisor of their respective obligations hereunder, hereunder and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters Representatives at the Closing Time and on each Date of Delivery an opinion Delivery, as applicable, opinions of Mayer, Brown, ▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction PartiesAdvisor, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery Delivery, as applicable, and substantially in form and substance satisfactory to counsel for the Underwriters to the effect set forth on in Exhibit A and Exhibit B heretohereto and to such further effect as counsel to the Underwriters may reasonably request.
(b) The Company shall furnish to the Underwriters Representatives at the Closing Time and on each Date of Delivery Delivery, as applicable, an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax in-house counsel for the Company, the Subsidiaries and each of the other Aames Transaction PartiesAdvisor, as to certain tax matters, which opinion shall be addressed to the Underwriters, Representatives and dated the Closing Time and substantially on each Date of Delivery, as applicable, and in form and substance satisfactory to counsel for the Underwriters to the effect set forth on in Exhibit C heretohereto and to such further effect as counsel to the Underwriters may reasonably request.
(c) The Company shall furnish to the Underwriters Representatives at the Closing Time and on each Date of Delivery Delivery, as applicable, an opinion of ▇▇▇▇▇▇▇, ▇ Lovells US LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General CounselDelivery, as to certain licensing applicable, and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwritersthe Underwriters to the effect set forth in Exhibit D hereto and to such further effect as counsel to the Underwriters may reasonably request.
(gd) The Representative Representatives shall have received from Ernst & Young BDO USA, LLP letters dated, respectively, a letter dated as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the Representative, Representatives relating to the combined financial statements, including any pro forma financial statements, statements of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In .
(e) The Representatives shall have received from Ernst & Young LLP a letter dated as of the event that date of this Agreement, the letters referred to above set forth any changes in indebtednessClosing Time and each Date of Delivery, decreases in total assets or retained earnings or increases in borrowingsas the case may be, it shall be a further condition addressed to the obligations of Representatives, in form and substance satisfactory to the Underwriters that (A) such letters shall be accompanied by a written explanation Representatives relating to the combined financial statements of the Company as to and the significance thereof, unless the Representative deems such explanation unnecessary, Subsidiaries and (B) such changes, decreases or increases do not, included in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus, and such other matters customarily covered by comfort letters issued in connection with registered public offerings.
(hf) The Representative Representatives shall have received at the Closing Time and on each Date of Delivery the favorable Delivery, as applicable, an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPDLA Piper LLP (US), counsel for the Underwriters, addressed to the Representatives and dated the Closing Time or such Date of Delivery, addressed to the Representative as applicable, and in form and substance satisfactory to the RepresentativeRepresentatives.
(ig) No amendment or supplement to the Registration Statement Statement, the General Disclosure Package or the Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jh) Prior to the Closing Time and each Date of Delivery (i) the Registration Statement shall be effective with the Commission and no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus preliminary prospectus or Prospectus has shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the General Disclosure Package and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(ki) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a Material Adverse Change Effect, whether or not arising in the ordinary course of business, and (ii) no transaction which that is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which that in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in on the NYSENew York Stock Exchange, subject only to official notice of issuance.
(nl) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(m) The Articles Supplementary shall have been accepted for record by the Maryland State Department of Assessments and Taxation and shall be effective under the Maryland General Corporation Law.
(n) The Representatives shall have received a copy of the Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
(o) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters as applicable, a certificate of its Chairman of the Board, Company’s Chief Executive Officer, President, President or Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act; and
(iii) subsequent to the respective dates as of which information is given in the General Disclosure Package or the Prospectus, there has not been (A) any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a Material Adverse Effect, whether or not arising in the ordinary course of business, (B) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, (C) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (E) any dividend or distribution of any kind declared, paid or made on the capital stock or other equity interests of the Company or any Subsidiary, or (F) any loss or damage (whether or not insured) to the property of the Company or any Subsidiary that has been sustained or will have been sustained that has or may reasonably be expected to have a Material Adverse Effect.
(p) The Representatives shall have received at the Closing Time and on each Date of Delivery, as applicable, a certificate of the Advisor’s Chief Executive Officer, President or Chief Operating Officer and Chief Accounting Officer or Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Advisor in this Agreement are true and correct, as if made on and as of such date, and the Advisor has complied with all material respects the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and General Disclosure Package or the Prospectus, there has not been (aA) any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have an Advisor Material Adverse ChangeEffect, whether or not arising in the ordinary course of business, or (bB) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPAdvisor.
(q) The Company Representatives shall have received as of the date of this Agreement, the Closing Time and each Transaction PartyDate of Delivery, as applicable, an officers’ certificate, executed on behalf of the Company by the Chief Financial Officer of the Company and the Chief Accounting Officer of the Company in form and substance satisfactory to counsel for the Underwriters.
(r) The Company, the Operating Partnership and the Advisor shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the General Disclosure Package and the Prospectus, the representations, warranties and statements of the Company Company, the Operating Partnership and the Advisor contained herein, and the performance by the Company Company, the Operating Partnership and the Transaction Parties Advisor of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement and Power of Attorney on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective obligations hereunder, hereunder and under the Custody Agreement and Power of Attorney and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer, Brown, ▇▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇, LLP, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery Option Closing Time and substantially in form and substance satisfactory to the Underwriters, to the effect set forth on in Exhibit B E hereto.
(b) The Company Each Selling Stockholder shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer, Brown, ▇▇▇▇ & Maw Sidley Austin LLP, special tax counsel for the CompanySelling Stockholders, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, Underwriters and dated the Closing Time and substantially each Option Closing Time and in form and substance satisfactory to the Underwriters, to the effect set forth on in Exhibit C F hereto.
(c) The Company shall furnish to On the Underwriters date of this Agreement and at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Option Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.if applicable), the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative Representatives shall have received from Ernst & Young Young, LLP, BKD, LLP and BDO USA, LLP letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives and the Selling Stockholders, in form and substance satisfactory to the RepresentativeRepresentatives, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company and the SubsidiariesSubsidiaries included or incorporated by reference in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems Representatives deem such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the RepresentativeRepresentatives, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hd) The Representative Representatives shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(ie) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representatives shall approve.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writingwriting prior to its filing.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole Representatives’ reasonable judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing in on the NYSE.
(nk) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative Representatives shall have received lock-up agreements from each officer, officer and director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A B attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of themthereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (eE) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (fF) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses .
(iin) and Each Selling Stockholder (iv) above, may limit certification or one or more Attorneys on behalf of the matters set forth in subclause Selling Stockholders) will, at the Closing Time, deliver to the Representatives a certificate, to the effect that:
(i) above to the representations, representations and warranties and agreements of SFP such Selling Stockholder set forth in this Agreement and may limit certification in the Custody Agreement and may limit certification Power of Attorney are true and correct as of such date; and
(ii) such Selling Stockholder has complied with all the matters set forth in subclause (iii) above agreements and satisfied all the conditions on its part to information, facts be performed or satisfied hereunder and events relating under the Custody Agreement and Power of Attorney at or prior to SFPsuch date.
(qo) The Company and each Transaction Partythe Selling Stockholders, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements contained herein and in the Custody Agreement and Power of the Company contained hereinAttorney, and the performance by the Company and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Selling Stockholders on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, Purchase the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of each of their respective obligations hereunder, hereunder and the satisfaction of to the following further additional conditions at the Closing Time or on each Date of Delivery, as applicableprecedent:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Purchase an opinion and negative assurance statement of Mayer, Brown, ▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇ LLP, special counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, and dated the Closing Time of Purchase in form and each Date of Delivery and substantially substance satisfactory to the effect Underwriters, as to the matters set forth on in Exhibit B A hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of MayerPurchase, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLPP.A., Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, and dated the Closing Time of Purchase in form and each Date of Delivery and substantially substance satisfactory to the effect Underwriters, as to the matters set forth on in Exhibit D B hereto.
(dc) The Company Selling Stockholders shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Purchase, an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.▇▇▇ & Bockius LLP, Esq.counsel to the Selling Stockholders, the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, and dated the Closing Time of Purchase, in form and each Date of Delivery and substantially substance satisfactory to the effect Underwriters, as to the matters set forth on in Exhibit E C hereto.
(ed) SFP The Underwriters shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLPLLP letters dated, special counsel for SFPrespectively, which opinion(s) shall be the date of this Agreement and the Time of Purchase and addressed to the Underwriters in the forms satisfactory to the Underwriters, dated which letters shall cover the Closing Time various financial disclosures contained in the Registration Statement, the Disclosure Package and each Date of Delivery and substantially to the effect set forth on Exhibit F heretoProspectus.
(fe) The Company Underwriters shall furnish to the Underwriters have received at the Closing Time of Purchase the favorable opinion and on each Date negative assurance statement of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ ▇, Hall & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as dated the Time of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativePurchase, in form and substance reasonably satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration StatementUnderwriters.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(if) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Underwriters Representatives shall have objected in writing.
(jg) The Registration Statement shall be effective under the Act and any registration statement required to be filed, prior to the sale of the Shares, under the Act pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act. The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., Boston time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Act).
(h) Prior to and at the Closing Time and each Date of Delivery Purchase, (i) no stop order suspending with respect to the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been issued under the Act or proceedings initiated under Section 8(d) or threatened, by the Commission, and no suspension 8(e) of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurredAct; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement and all amendments thereto shall not contain an untrue statement of a material fact or 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, therein not misleading.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when none of the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act Preliminary Prospectuses or the Exchange Act and the applicable rules and regulations of the Commission thereunderProspectus nor any amendment or supplement thereto, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not shall include any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; and, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent neither the Disclosure Package, nor any amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the respective dates as of which information is given statements therein, in the Registration Statementlight of the circumstances under which they are made, S-4 not misleading; and Prospectus(v) none of the Permitted Free Writing Prospectuses, there has not been (a) any Material Adverse Changeif any, (b) any transaction that is shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the Company and the Subsidiaries considered as one enterprisestatements therein, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness light of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprisecircumstances under which they are made, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause misleading.
(i) above The Company will, at the Time of Purchase, deliver to the representationsUnderwriters a certificate of its Chief Executive Officer and its Chief Financial Officer, warranties and agreements dated the Time of SFP Purchase, in this Agreement and may limit certification and may limit certification of a form satisfactory to the matters set forth in subclause (iii) above to information, facts and events relating to SFPRepresentatives.
(qj) The Selling Stockholders will, at the Time of Purchase, deliver to the Representatives a certificate, dated the Time of Purchase in a form satisfactory to the Representatives.
(k) The Underwriters shall have received each of the signed Lock-Up Agreements referred to in Sections 3(ii) and 4(m) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Time of Purchase.
(l) The Company and each Transaction Party, as applicable, the Selling Stockholders shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the ProspectusStatement, the representationsDisclosure Package, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of Prospectus or any conditions contained herein or therein, Permitted Free Writing Prospectus as of the Closing Time or any Date of DeliveryPurchase, as the Underwriters Representatives may reasonably request.
(r) (Am) The Merger Agreement effecting the First Merger and the Second Merger Shares shall have been duly authorized by all necessary corporate action approved for listing on NASDAQ, subject only to notice of issuance at or prior to the part Time of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this AgreementPurchase.
(sn) All outstanding optionsFINRA shall not have raised any unresolved objection with respect to the fairness or reasonableness of the underwriting, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 arrangements of the Delaware General Corporation Lawtransactions, contemplated hereby.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Health Insurance Innovations, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and subscribe for Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time (if applicable) (i) an opinion and 10b-5 statement of Mayer, Brown, ▇▇▇▇ White & Maw Case LLP, counsel for the Company, (ii) a 10b-5 statement of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Subsidiaries Company, and (iii) an opinion of ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company, in each of the other Aames Transaction Partiescase, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time or the applicable Option Closing Time, as the case may be, and each Date of Delivery in form and substantially substance satisfactory to the effect set forth on Exhibit B heretoRepresentatives.
(b) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time (if applicable) an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax Cayman Islands counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, Underwriters and dated the Closing Time and substantially to or the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the applicable Option Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General CounselTime, as to certain licensing the case may be, and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ the Representatives.
(c) [Reserved.]
(d) On the date of this Agreement and at the Closing Time and at each Option Closing Time (if applicable), the Representatives shall have received from Audit Alliance, LLP letters addressed to the Underwriters and each dated the respective dates of delivery thereof and in form and substance satisfactory to the Representatives, containing statements and information of the type customarily covered by an accountant’s “comfort letters” to underwriters delivered according to the PCAOB’s Auditing Standards 6101 (or any successor bulletin) issued in connection with underwritten public offerings including, without limitation, the separate audited and unaudited financial statements of the Company and Enovum and the various other financial disclosures including any pro forma financial statements contained in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be.
(e) The Representatives shall have received at the Closing Time and at each Option Closing Time (if applicable) an opinion and 10b-5 statement of O’Melveny & ▇▇▇▇▇▇▇ LLP, counsel for to the Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of addressed to the date of this Agreement, Underwriters and dated the Closing Time and each Date of Deliveryor the applicable Option Closing Time, as the case may be, addressed to the Representative, and in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration StatementRepresentatives.
(hf) The Representative Representatives shall have received at the Closing Time and on at each Date of Delivery the favorable Option Closing Time (if applicable) an opinion and 10b-5 statement of ▇▇▇▇▇▇ & ▇and ▇▇▇▇▇▇ (Cayman) LLP, Cayman Islands counsel to the Underwriters, addressed to the Underwriters and dated the Closing Time or such Date of Deliverythe applicable Option Closing Time, addressed to as the Representative case may be, and in form and substance satisfactory to the RepresentativeRepresentatives.
(g) The Registration Statement shall have become effective not later than 5:30 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representatives shall approve. If Rule 430A under the Securities Act is used, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act at or before 5:30 p.m., New York City time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act).
(h) Any Rule 462(b) Registration Statement required to be filed prior to the sale of the Shares under the Securities Act shall have been filed on the date hereof and shall have become automatically effective upon such filing.
(i) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(j) Prior to the Closing Time and each Date of Delivery Option Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatenedor, to the Company’s knowledge, threatened by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iv) the Disclosure Package and the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company shall not have become the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares.
(k) All filings with the Commission required by Rule 424 under the Securities Act (including the information required by Rule 430A under the Securities Act) to have been filed by the Closing Time shall have been made in the manner and within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Option Closing Time, (i) there shall not have been any Material Adverse Change Change; and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of Company, which is not described in the SubsidiariesRegistration Statement, in each casethe Disclosure Package and the Prospectus, and which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSEon Nasdaq.
(n) The NASD FINRA shall not have raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsor other arrangements of the transactions contemplated hereby.
(o) The Representative On or prior to the date hereof, the Representatives shall have received lockLock-up agreements Agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached heretoLock-Up Persons, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shallshall furnish to the Underwriters, at the Closing Time and on at each Date of DeliveryOption Closing Time (if applicable), deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or its Chief Financial Officer, General Partner dated the Closing Time or Managing Member, as applicablethe applicable Option Closing Time, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, with the same force and effect as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has complied in all material respects with all the covenants and agreements and satisfied in all material respects all the conditions on its part to be performed under this Agreement or satisfied at or prior to the date hereofsuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or or, to the Company’s knowledge, threatened by the Commission under the Securities Act;; and
(iii) when for the Registration Statement period from and S-4 became effective and at all times subsequent thereto up to including the date hereof, the Registration Statement of this Agreement through and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectusincluding such date, there has not been (a) occurred any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction Partyshall furnish to the Underwriters, as of the date hereof, at the Closing Time and at each Option Closing Time (if applicable), a certificate of its Chief Financial Officer, dated the Closing Time or the applicable Option Closing Time, with respect to certain financial data contained in the Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and substance satisfactory to the Representatives.
(r) The Company shall have furnished to the Underwriters and counsel for the Underwriters such other documents information, documents, opinions and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Disclosure Package and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters or their counsel may reasonably request.
(r) (A) The Merger Agreement effecting , and all proceedings taken by the First Merger Company in connection with the issuance and the Second Merger shall have been duly authorized by all necessary corporate action on the part sale of the Company, each Subsidiary Shares as contemplated herein and each Transaction Party, as applicable; (B) as of in connection with the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the other transactions contemplated by this Agreement or otherwise adversely affect shall be satisfactory in form and substance to the ability of any party hereto to fulfill its obligations under this AgreementRepresentatives and counsel for the Underwriters.
(s) All outstanding optionsThe Company shall have completed the Reorganization pursuant to the Transition Documents as described in the Registration Statement, warrants the Disclosure Package and the Prospectus. There shall be no material legal, regulatory or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease challenges to the Reorganization. If any condition specified in this Section 6 is not satisfied when and as required to be outstanding.
(t) None of SFP satisfied, this Agreement may be terminated by the Representatives by notice from the Representatives to the Company at any time on or any of its affiliatesprior to the Closing Time and, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of respect to the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall haveAdditional Ordinary Shares, at any meeting (time on or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable prior to the Representativeapplicable Option Closing Time, which termination shall be without liability on the part of any party to any other party, except that Sections 5, 7, and 9 shall at all times be effective and shall survive such termination.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each the Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder in all material respects on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance by the Company of its obligations hereunder in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each the Date of Delivery, as applicable:
(a) The Company Representative shall furnish to the Underwriters at have received, dated as of the Closing Time and on each Date of Delivery Delivery, an opinion of Mayer, Brown, ▇▇▇▇▇ & Maw ▇▇▇▇▇▇ LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time Underwriters and each Date of Delivery in form and substantially substance satisfactory to the effect set forth on Representative covering the matters described in Exhibit B A hereto.
(b) The Company Representative shall furnish to the Underwriters at have received, dated as of the Closing Time and on each Date of Delivery Delivery, an opinion of Mayer, Brown, ▇▇▇▇▇ & Maw ▇▇▇▇▇▇ LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time Underwriters and substantially in form and substance satisfactory to the effect set forth on Representative covering the matters described in Exhibit C B hereto.
(c) The Company Representative shall furnish to the Underwriters at have received, dated as of the Closing Time and on each Date of Delivery Delivery, an opinion of Saxon’s in-house counsel, addressed to the Underwriters and in form and substance satisfactory to the Representative covering the matters described in Exhibit C hereto.
(d) The Underwriters shall have received at the Closing Time the favorable opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as counsel for the Underwriters, dated the Closing Time, in form and substance satisfactory to the Representative.
(ge) The Underwriters shall have received at the Closing Time the favorable opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, as special tax counsel for the Underwriters, dated the Closing Time, in form and substance satisfactory to the Representative.
(f) The Representative shall have received from Ernst Deloitte & Young LLP Touche LLP, letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance reasonably satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the SubsidiariesCompany, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ig) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(jh) Notification from the Company 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 5(b) of this Agreement.
(i) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred; occurred and, in any such instance, not been waived by the Commission, (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, Statement and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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 misleadingmisleading and (iii) 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.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there no material and adverse change in the assets, business, operations, earnings, properties, prospects or condition (financial or otherwise) of the Company shall occur or become known (whether or not have been any Material Adverse Change arising in the ordinary course of business) and (ii) no transaction which is material and unfavorable adverse to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementCompany.
(mk) The Shares shall have been approved for listing in quotation on the NYSENasdaq National Market.
(nl) If the issuance and sale of the Initial Shares and/or Option Shares to the Underwriters will result in the Underwriters individually or in the aggregate exceeding the Ownership Limit (as defined in the Company Charter Documents) with respect to the Company’s capital stock, then, on or prior to the Closing Time or the relevant Date of Delivery, the Underwriters shall have received from the Company’s board of directors a waiver or exemption from the Ownership Limit with respect to the issuance and sale of such Shares, in form and substance reasonably satisfactory to the Underwriters.
(m) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsarrangements between the date of this Agreement and the Closing Time or the Date of Delivery, as applicable.
(o) The Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pn) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or its Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) , to each of such officer’s knowledge, the representations and warranties of the Company and the Transaction Parties set forth in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied correct in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
paragraphs (iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Changei), (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (iij) and (ivk) abovehave been satisfied, may limit certification in each case as of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPsuch date.
(qo) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to (i) the accuracy and completeness of any statement in the Registration Statement and the Prospectus, (ii) the representations, representations and warranties and statements of the Company contained herein, and (iii) the performance by the Company and the Transaction Parties of their respective its covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, Delivery as the Underwriters may reasonably request.
(r) (Ap) The Merger Agreement effecting the First Merger and the Second Merger Company shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill performed its obligations under this AgreementAgreement as are to be performed by the terms hereof and thereof at or before the Closing Time or the relevant Date of Delivery.
(sq) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I Representative shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and received lock-up agreements from each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (each, a “Lock-Up Agreement”) substantially in the Company’s Chief Executive Officerform of Exhibit D attached hereto, and such agreements shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time be in full force and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representativeeffect.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at and pay for the Closing Time or on each Date of Delivery, as applicable, Certificates pursuant to this Agreement are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters at On the Closing Time and on each Date of Delivery an opinion of MayerDate, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative you shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time opinions and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion negative assurance statement of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, outside counsel for the Company and Parent Guarantor, dated the Closing Time or such Date of Delivery, and addressed to the Representative and Underwriters, in form and substance reasonably satisfactory to you.
(b) On the RepresentativeClosing Date, you shall have received an opinion of Squire, ▇▇▇▇▇▇▇ (US) LLP, regulatory counsel of the Company and the Parent Guarantor, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you.
(c) On the Closing Date, you shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for Wilmington Trust Company, individually and as the Loan Trustee, Subordination Agent and Trustee, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you.
(d) On the Closing Date, you shall have received an opinion of Ray, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Escrow Agent, dated the Closing Date, in form and substance reasonably satisfactory to you.
(e) On the Closing Date, you shall have received (i) an opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel for the Liquidity Provider, and (ii) an opinion of in-house counsel for the Liquidity Provider, in each case, in form and substance reasonably satisfactory to you and dated the Closing Date.
(f) On the Closing Date, you shall have received an opinion of in-house counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to you.
(g) On the Closing Date, you shall have received an opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to you.
(h) On the Closing Date, you shall have received an opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated as of the Closing Date and addressed to the Underwriters, with respect to the issuance and sale of the Certificates, the Registration Statement, the Time of Sale Prospectus, the Prospectus and other related matters as the Underwriters may reasonably require.
(i) No amendment or supplement Subsequent to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(j) Prior to the Closing Time execution and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution delivery of this Agreement and prior to the Closing Time or the relevant Date of Delivery Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any Material Adverse Change and intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company, the Parent Guarantor or any of their respective subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) no transaction which there shall not have occurred any change, or any development reasonably likely to involve a change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company, the Parent Guarantor and their respective subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiariesadverse and that makes it, in each case, which in the Representative’s sole your judgment, makes it impracticable or inadvisable to proceed with the completion of the public offering of the Shares as Certificates on the terms and in the manner contemplated by the Registration Statement, and the Time of Sale Prospectus.
(mj) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Underwriters shall have received lock-up agreements from each on the Closing Date (i) a certificate dated the Closing Date, addressed to the Underwriters and signed by an executive officer of the Company, in such officer, director, and 1% or greater stockholder ’s capacity as an officer of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by Company’s behalf, to the Company under the Securities Act so long as such registration statement complies with the restrictions thereon effect set forth in Section 4(q)(E3(i)(i) of this Agreement.
(p) The Company above and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
: (i1) the representations and warranties of the Company and the Transaction Parties contained in this Agreement are true and correct, as if made on and correct as of the date hereof, Closing Date and (2) the Company and each Aames Transaction Party has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to before the date hereof;
Closing Date and (ii) no stop order suspending a certificate dated the effectiveness Closing Date, and signed by an executive officer of the Registration Statement Parent Guarantor, in such officer’s capacity as an officer of the Parent Guarantor and on the Parent Guarantor’s behalf, to the effect set forth in Section 3(i)(i) above and to the effect that: (1) the representations and warranties of the Parent Guarantor contained in this Agreement are true and correct as of the Closing Date and (2) the Parent Guarantor has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or any post-effective amendment thereto satisfied hereunder on or before the S-4Closing Date. Each of the officers signing and delivering the respective certificates contemplated in clauses (i) and (ii) may rely upon the best of his or her knowledge as to proceedings threatened.
(k) You shall have received from KPMG LLP, (i) a letter, dated no later than the date hereof and no order directed at any document addressed to the Underwriters, in form and substance satisfactory to you, 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 included or incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when in the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofStatement, the Registration Statement preliminary prospectus and the Prospectus, and (ii) a letter, dated the S-4 Closing Date and any amendments or supplements addressed to any the Underwriters, which meets the above requirements, except that the specified date therein referring to certain procedures performed by KPMG LLP will not be a date more than three business days prior to the Closing Date for purposes of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations this subsection.
(l) Each of the Commission thereunderAppraisers shall have furnished to you a letter from such Appraiser, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material addressed to the Company and the Subsidiaries considered as one enterpriseParent Guarantor and dated the Closing Date, except transactions entered into in confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the ordinary course Company, the Parent Guarantor or any of businesstheir respective affiliates, (cii) does not have any obligationsubstantial interest, direct or contingentindirect, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of businessCompany, (d) any change in the capital stock or outstanding indebtedness of the Company Parent Guarantor or any Subsidiary that is material to the Company of their respective affiliates and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to informationis not connected with the Company, facts and events relating to SFPthe Parent Guarantor or any of their respective affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(qm) The Company At the Closing Date, each of the Operative Agreements (other than the Assignment and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Assumption Agreements and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(rFinancing Agreements) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized executed and delivered by all necessary corporate action on the part each of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreementparties thereto.
(sn) All outstanding optionsOn the Closing Date, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I the Class A Certificates and the Class B Certificates shall have been terminated or shall otherwise cease to be outstandingreceived the ratings indicated in the free writing prospectus identified as Item 1 in Schedule IV hereto from the nationally recognized statistical rating organizations named therein.
(to) None of SFP or any of its affiliates, The Underwriters shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under received on the Closing Date a certificate dated the Closing Date, signed by an executive officer of the Parent Guarantor and in accordance form and substance reasonably satisfactory to you, with Section 262 respect to the accuracy of certain statistical information included or incorporated by reference in the Delaware General Corporation LawTime of Sale Prospectus and the Prospectus.
(up) SFP On the Closing Date, the representations and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor warranties of the approval of the Mergers Depositary contained in this Agreement shall be true and (B) against any action, proposal (including any Superior Proposal, correct as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following if made on the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable Date (except to the Representativeextent that they relate solely to an earlier date, in which case they shall be true and correct as of such earlier date).
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on at each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Option Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(bif applicable) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFPthe Company, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time or the applicable Option Closing Time, as the case may be, and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to the Representatives.
(b) On the date of this Agreement and at the Closing Time and at each Option Closing Time (if applicable), the Representatives shall have received from ▇▇▇▇▇▇▇▇ LLP letters addressed to the Representatives and dated the respective dates of delivery thereof and in form and substance satisfactory to the Representatives, containing statements and information of the type customarily covered by an accountant’s “comfort letters” to underwriters.
(c) The Representatives shall have received at the Closing Time and at each Option Closing Time (if applicable) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ LLP, counsel for to the Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of addressed to the date of this Agreement, Representatives and dated the Closing Time and each Date of Deliveryor the applicable Option Closing Time, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the RepresentativeRepresentatives.
(id) The Registration Statement shall have become effective not later than 5:30 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representatives shall approve. If Rule 430A under the Securities Act is used, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act at or before 5:30 p.m., New York City time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act).
(e) Any Rule 462(b) Registration Statement required to be filed prior to the sale of the Shares under the Securities Act shall have been filed on the date hereof and shall have become automatically effective upon such filing.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatenedor, to the Company’s knowledge, threatened by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company shall not have become the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares.
(kh) All filings with the Commission required by Rule 424 under the Securities Act (including the information required by Rule 430A under the Securities Act) to have been filed by the Closing Time shall have been made in the manner and within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Option Closing Time, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which is not described in the Representative’s sole Registration Statement and the Disclosure Package, and which in the Representatives’ reasonable judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing in the NYSEon Nasdaq, subject to official notice of issuance.
(nk) The NASD FINRA shall not have raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsor other arrangements of the transactions contemplated hereby.
(ol) The Representative On or prior to the date hereof, the Representatives shall have received lockLock-up agreements Agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached heretoLock-Up Persons, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallshall furnish to the Underwriters, at the Closing Time and on at each Date of DeliveryOption Closing Time (if applicable), deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or its Chief Financial Officer, General Partner dated the Closing Time or Managing Member, as applicablethe applicable Option Closing Time, to the effect that:
(i) the representations representations, warranties, and warranties covenants of the Company and the Transaction Parties in this Agreement are true and correct, with the same force and effect as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the such date hereofunder this Agreement;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;; and
(iii) when for the Registration Statement period from and S-4 became effective including the date of this Agreement through and at all times subsequent thereto up including such date, there has not occurred any Material Adverse Change.
(n) [The Company shall furnish to the Underwriters, as of the date hereof, at the Registration Statement Closing Time and at each Option Closing Time (if applicable), a certificate of its Chief Financial Officer, dated the Closing Time or the applicable Option Closing Time, with respect to certain financial data contained in the Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed substance satisfactory to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; andRepresentatives.]
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(qo) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters and counsel for the Underwriters such other documents information, documents, opinions and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters or their counsel may reasonably request.
(rp) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of Prior to the Closing Time, the First Merger SAFE Conversions, including the related amendments to the Company’s organizational documents, shall have closedbeen duly completed and effective, and there subject only to application of proceeds received by the Company from the sale of Shares.
(q) The Reverse Stock Split shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of effective prior to the Closing Time. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, there this Agreement may be terminated by the Representatives by notice from the Representatives to the Company at any time on or prior to the Closing Time and, with respect to the Option Shares, at any time on or prior to the applicable Option Closing Time, which termination shall be no pending or threatened action, suit or proceeding that could, in without liability on the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability part of any party hereto to fulfill its obligations under this Agreementany other party, except that Sections 5, 7, and 9 shall at all times be effective and shall survive such termination.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement and Power of Attorney on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective obligations hereunder, hereunder and under the Custody Agreement and Power of Attorney and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters Underwriters: (i) at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer, Brown, ▇▇▇▇ Holland & Maw Knight LLP, counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date Option Closing Time and in form and substance satisfactory to King & Spalding LLP, counsel for the Underwriters; and (ii) at the Closing Time, in the case of Delivery the Firm Selling Stockholders, and substantially on each Option Closing Time, in the case of the Option Selling Stockholders, an opinion of Holland & Knight LLP, counsel for the Selling Stockholders, addressed to the effect set forth on Exhibit B heretoUnderwriters and dated the Closing Time or Option Closing Time, as applicable, and in form and substance satisfactory to King & Spalding LLP, counsel for the Underwriters.
(b) The Company Representative shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, have received from G▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of DeliveryOption Closing Time, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, statements of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hc) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ King & ▇▇▇▇▇▇▇ Spalding LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(id) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(je) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, as of each effective date, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus nor and the S-4 Disclosure Package shall not contain an untrue statement of a material fact or 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.
(kf) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lg) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time, there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mh) The Shares shall have been approved for listing inclusion in the NYSENasdaq National Market.
(ni) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(oj) The Representative shall have received executed lock-up agreements from each officer, director, officer and 1% or greater stockholder director of the Company and Aames Financial Ieach Selling Stockholder, in the form of Exhibit A B attached heretohereto (and with such changes as the Representative may otherwise agree), and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pk) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Subsidiaries in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to thereto and any of themIncorporated Documents, when such Incorporated Documents became effective or were filed with the Commission, contained all material information required to be included therein by the Securities Act, the Securities Act or Regulations, the Exchange Act and the applicable rules and regulations of the Commission thereunderExchange Act Regulations, as the case may be, and in all material respects conformed to the requirements of the Securities Act, the Securities Act or Regulations, the Exchange Act and the applicable rules and regulations of the Commission thereunderExchange Act Regulations, as the case may be; the Registration Statement and the ProspectusStatement, the S-4, and any amendments or supplements to any as of themeach effective date, did not and do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus and the Disclosure Package, and any amendments or supplements thereto, did not and do not, as of their applicable filing dates, at the Closing Time and on each Option Closing Time, include an untrue statement of a material fact or 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, since the effective date dates of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided.
(l) Each Firm Selling Stockholder will, that at the certificate delivered by Closing Time, and each Option Selling Stockholder will on each Option Closing Time, deliver to the applicable officers of SFP may omit Underwriters a certificate, to the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause effect that:
(i) above to the representations, representations and warranties and agreements of SFP such Selling Stockholder set forth in this Agreement and may limit certification in the Custody Agreement and may limit certification Power of Attorney are true and correct as of such date; and
(ii) such Selling Stockholder has complied with all the matters set forth in subclause (iii) above agreements and satisfied all the conditions on its part to information, facts be performed or satisfied hereunder and events relating under the Custody Agreement and Power of Attorney at or prior to SFPthe date hereof.
(qm) The Company and each Transaction Partythe Selling Stockholders, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained hereinherein and in the Custody Agreement and Power of Attorney, and the performance by the Company and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on at each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement and Power of Attorney on the date hereof and at the Closing Time and on at each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective obligations hereunder, hereunder and under the Custody Agreement and Power of Attorney and to the satisfaction of the following further conditions at the Closing Time or on at each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPL.L.P., counsel for Underwritersthe Company and the Subsidiaries, addressed to the Underwriters and dated the Closing Time and each Option Closing Time and in form and substance substantially as set forth on Attachment I hereto.
(gb) The Representative Each Selling Stockholder shall furnish to the Underwriters at the Closing Time and at each Option Closing Time (to the extent such Selling Stockholder is selling the Shares at such Option Closing Time) an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. addressed to the Underwriters and dated the Closing Time and each Option Closing Time and in form and substance substantially as set forth on Attachment II hereto.
(c) On the date of this Agreement and at the Closing Time and each Option Closing Time (if applicable), the Representatives shall have received from Ernst & Young LLP LLP, letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating containing statements and information of the type specified in AU Section 634 "Letters for Underwriters and Certain other Requesting Parties" issued by the American Institute of Certified Public Accountants with respect to the financial statements, including any pro forma financial statements, and certain financial information of the Company and the SubsidiariesSubsidiaries included in the Registration statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided that the letters referred delivered at the Closing Time and each Option Closing Time (if applicable) shall use a "cut-off" date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Option Closing Time, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to as the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statementcase may be.
(hd) The Representative Representatives shall have received at the Closing Time and on at each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ King & ▇▇▇▇▇▇▇ Spalding LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(ie) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representatives shall approve.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives' sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing inclusion in the NYSENasdaq.
(nk) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder as contemplated by Section 4 of the Company and Aames Financial I, in the form of Exhibit A attached heretothis agreement, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shallwill, at the Closing Time and on at each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its (i) Chairman of the Board, Board and Chief Executive Officer, President, Chief Operating Officer or Vice (ii) President and Chief Accounting Officer or Operating Officer, and (iii) Chief Financial Officer, General Partner or Managing Member, as applicableOfficer and Treasurer, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement Statement, the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of themthereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated herein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change.
(n) Each Selling Stockholder will, at the Closing Time and at each Option Closing Time (b) any transaction that is material to the Company and extent such Selling Stockholder is selling the Subsidiaries considered as one enterpriseShares at such Option Closing Time), except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material deliver to the Company and the Subsidiaries considered as one enterpriseUnderwriters a certificate, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause effect that:
(i) above to the representations, representations and warranties and agreements of SFP such Selling Stockholder set forth in this Agreement and may limit certification in the Custody Agreement and may limit certification Power of Attorney are true and correct as of such date; and
(ii) such Selling Stockholder has complied with all the matters set forth in subclause (iii) above agreements and satisfied all the conditions on its part to information, facts be performed or satisfied hereunder and events relating under the Custody Agreement and Power of Attorney at or prior to SFPthe date hereof.
(qo) The Company and each Transaction Partythe Selling Stockholders, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained hereinherein and in the Custody Agreement and Power of Attorney, and the performance by the Company and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and subscribe for Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time (if applicable) (i) an opinion and 10b-5 statement of Mayer, Brown, ▇▇▇▇ White & Maw Case LLP, counsel for the Company, the Subsidiaries and (ii) a 10b-5 statement of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, in each of the other Aames Transaction Partiescase, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time or the applicable Option Closing Time, as the case may be, and each Date of Delivery in form and substantially substance satisfactory to the effect set forth on Exhibit B heretoRepresentatives.
(b) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time (if applicable) an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax Cayman Islands counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, Underwriters and dated the Closing Time and substantially to or the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the applicable Option Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General CounselTime, as to certain licensing the case may be, and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ the Representatives.
(c) [Reserved.]
(d) On the date of this Agreement and at the Closing Time and at each Option Closing Time (if applicable), the Representatives shall have received from Audit Alliance, LLP letters addressed to the Underwriters and each dated the respective dates of delivery thereof and in form and substance satisfactory to the Representatives, containing statements and information of the type customarily covered by an accountant’s “comfort letters” to underwriters delivered according to the PCAOB’s Auditing Standards 6101 (or any successor bulletin) issued in connection with underwritten public offerings including, without limitation, the separate audited and unaudited financial statements of the Company and Enovum and the various other financial disclosures including any pro forma financial statements contained in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be.
(e) The Representatives shall have received at the Closing Time and at each Option Closing Time (if applicable) an opinion and 10b-5 statement of O’Melveny & ▇▇▇▇▇▇▇ LLP, counsel for to the Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of addressed to the date of this Agreement, Underwriters and dated the Closing Time and each Date of Deliveryor the applicable Option Closing Time, as the case may be, addressed to the Representative, and in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration StatementRepresentatives.
(hf) The Representative Representatives shall have received at the Closing Time and on at each Date of Delivery the favorable Option Closing Time (if applicable) an opinion and 10b-5 statement of ▇▇▇▇▇▇ & ▇and ▇▇▇▇▇▇ (Cayman) LLP, Cayman Islands counsel to the Underwriters, addressed to the Underwriters and dated the Closing Time or such Date of Deliverythe applicable Option Closing Time, addressed to as the Representative case may be, and in form and substance satisfactory to the RepresentativeRepresentatives.
(g) The Registration Statement shall have become effective not later than 5:30 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representatives shall approve. If Rule 430A under the Securities Act is used, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act at or before 5:30 p.m., New York City time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act).
(h) Any Rule 462(b) Registration Statement required to be filed prior to the sale of the Shares under the Securities Act shall have been filed on the date hereof and shall have become automatically effective upon such filing.
(i) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(j) Prior to the Closing Time and each Date of Delivery Option Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatenedor, to the Company’s knowledge, threatened by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iv) the Disclosure Package and the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company shall not have become the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares.
(k) All filings with the Commission required by Rule 424 under the Securities Act (including the information required by Rule 430A under the Securities Act) to have been filed by the Closing Time shall have been made in the manner and within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Option Closing Time, (i) there shall not have been any Material Adverse Change Change; and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of Company, which is not described in the SubsidiariesRegistration Statement, in each casethe Disclosure Package and the Prospectus, and which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(m) The Shares shall have been approved for listing in the NYSEon Nasdaq.
(n) The NASD FINRA shall not have raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsor other arrangements of the transactions contemplated hereby.
(o) The Representative On or prior to the date hereof, the Representatives shall have received lockLock-up agreements Agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached heretoLock-Up Persons, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shallshall furnish to the Underwriters, at the Closing Time and on at each Date of DeliveryOption Closing Time (if applicable), deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or its Chief Financial Officer, General Partner dated the Closing Time or Managing Member, as applicablethe applicable Option Closing Time, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, with the same force and effect as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has complied in all material respects with all the covenants and agreements and satisfied in all material respects all the conditions on its part to be performed under this Agreement or satisfied at or prior to the date hereofsuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or or, to the Company’s knowledge, threatened by the Commission under the Securities Act;; and
(iii) when for the Registration Statement period from and S-4 became effective and at all times subsequent thereto up to including the date hereof, the Registration Statement of this Agreement through and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectusincluding such date, there has not been (a) occurred any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(q) The Company and each Transaction Partyshall furnish to the Underwriters, as of the date hereof, at the Closing Time and at each Option Closing Time (if applicable), a certificate of its Chief Financial Officer, dated the Closing Time or the applicable Option Closing Time, with respect to certain financial data contained in the Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and substance satisfactory to the Representatives.
(r) The Company shall have furnished to the Underwriters and counsel for the Underwriters such other documents information, documents, opinions and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Disclosure Package and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters or their counsel may reasonably request.
(r) (A) The Merger Agreement effecting , and all proceedings taken by the First Merger Company in connection with the issuance and the Second Merger shall have been duly authorized by all necessary corporate action on the part sale of the Company, each Subsidiary Shares as contemplated herein and each Transaction Party, as applicable; (B) as of in connection with the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the other transactions contemplated by this Agreement or otherwise adversely affect shall be satisfactory in form and substance to the ability of any party hereto to fulfill its obligations under this AgreementRepresentatives and counsel for the Underwriters.
(s) All outstanding optionsThe Company shall have completed the Reorganization pursuant to the Transition Documents as described in the Registration Statement, warrants the Disclosure Package and the Prospectus. There shall be no material legal, regulatory or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease challenges to the Reorganization. If any condition specified in this Section 6 is not satisfied when and as required to be outstanding.
(t) None of SFP satisfied, this Agreement may be terminated by the Representatives by notice from the Representatives to the Company at any time on or any of its affiliatesprior to the Closing Time and, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of respect to the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall haveAdditional Ordinary Shares, at any meeting (time on or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable prior to the Representativeapplicable Option Closing Time, which termination shall be without liability on the part of any party to any other party, except that Sections 5, 7, and 9 shall at all times be effective and shall survive such termination.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at and pay for the Closing Time or on each Date of Delivery, as applicable, Class C Certificates pursuant to this Agreement are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters at On the Closing Time and on each Date of Delivery an opinion of MayerDate, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative you shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time opinions and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion negative assurance statement of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, outside counsel for the Company and Parent Guarantor, dated the Closing Time or such Date of Delivery, and addressed to the Representative and Underwriters, in form and substance reasonably satisfactory to the Representativeyou.
(ib) No amendment or supplement On the Closing Date, you shall have received an opinion of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., regulatory counsel of the Company and the Parent Guarantor, dated the Closing Date and addressed to the Registration Statement or Prospectus shall have been filed Underwriters, in form and substance reasonably satisfactory to which the Underwriters shall have objected in writingyou.
(jc) Prior On the Closing Date, you shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for Wilmington Trust Company, individually and as the Loan Trustee, Subordination Agent and Trustee, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you.
(d) On the Closing Time Date, you shall have received an opinion of Ray, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Escrow Agent, dated the Closing Date, in form and each Date substance reasonably satisfactory to you.
(e) On the Closing Date, you shall have received an opinion of Delivery in-house counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to you.
(if) no stop order suspending On the effectiveness Closing Date, you shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇ LLP, special New York counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to you.
(g) On the Closing Date, you shall have received an opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated as of the Registration Statement or S-4 or any order preventing or suspending Closing Date and addressed to the use of any Preliminary Prospectus or Prospectus has been issuedUnderwriters, with respect to the issuance and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension sale of the qualification of the Shares for offering or sale in any jurisdictionCertificates, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Time of Sale Prospectus, the Prospectus nor and other related matters as the S-4 shall contain an untrue statement of a material fact or 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 misleadingUnderwriters may reasonably require.
(kh) All filings with Subsequent to the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution and delivery of this Agreement and prior to the Closing Time or the relevant Date of Delivery Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any Material Adverse Change and intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company, the Parent Guarantor or any of their respective subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) no transaction which there shall not have occurred any change, or any development reasonably likely to involve a change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company, the Parent Guarantor and their respective subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiariesadverse and that makes it, in each case, which in the Representative’s sole your judgment, makes it impracticable or inadvisable to proceed with the completion of the public offering of the Shares as Class C Certificates on the terms and in the manner contemplated by the Registration Statement, and the Time of Sale Prospectus.
(mi) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Underwriters shall have received lock-up agreements from each on the Closing Date (i) a certificate dated the Closing Date, addressed to the Underwriters and signed by an executive officer of the Company, in such officer, director, and 1% or greater stockholder ’s capacity as an officer of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by Company’s behalf, to the Company under the Securities Act so long as such registration statement complies with the restrictions thereon effect set forth in Section 4(q)(E3(i)(i) of this Agreement.
(p) The Company above and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
: (i1) the representations and warranties of the Company and the Transaction Parties contained in this Agreement are true and correct, as if made on and correct as of the date hereof, Closing Date and (2) the Company and each Aames Transaction Party has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to before the date hereof;
Closing Date and (ii) no stop order suspending a certificate dated the effectiveness Closing Date, and signed by an executive officer of the Registration Statement Parent Guarantor, in such officer’s capacity as an officer of the Parent Guarantor and on the Parent Guarantor’s behalf, to the effect set forth in Section 3(i)(i) above and to the effect that: (1) the representations and warranties of the Parent Guarantor contained in this Agreement are true and correct as of the Closing Date and (2) the Parent Guarantor has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or any post-effective amendment thereto satisfied hereunder on or before the S-4Closing Date. Each of the officers signing and delivering the respective certificates contemplated in clauses (i) and (ii) may rely upon the best of his or her knowledge as to proceedings threatened.
(j) You shall have received from KPMG LLP, (i) a letter, dated no later than the date hereof and no order directed at any document addressed to the Underwriters, in form and substance satisfactory to you, 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 included or incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when in the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofStatement, the Registration Statement preliminary prospectus and the Prospectus, and (ii) a letter, dated the S-4 Closing Date and any amendments or supplements addressed to any the Underwriters, which meets the above requirements, except that the specified date therein referring to certain procedures performed by KPMG LLP will not be a date more than three business days prior to the Closing Date for purposes of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations this subsection.
(k) Each of the Commission thereunderAppraisers shall have furnished to you a letter from such Appraiser, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material addressed to the Company and the Subsidiaries considered as one enterpriseParent Guarantor and dated the Closing Date, except transactions entered into in confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the ordinary course Company, the Parent Guarantor or any of businesstheir respective affiliates, (cii) does not have any obligationsubstantial interest, direct or contingentindirect, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of businessCompany, (d) any change in the capital stock or outstanding indebtedness of the Company Parent Guarantor or any Subsidiary that is material to the Company of their respective affiliates and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to informationis not connected with the Company, facts and events relating to SFPthe Parent Guarantor or any of their respective affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(ql) The Company At the Closing Date, each of the Operative Agreements (other than the Assignment and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Assumption Agreements and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(rFinancing Agreements) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized executed and delivered by all necessary corporate action on the part each of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreementparties thereto.
(sm) All outstanding optionsOn the Closing Date, warrants the Class C Certificates shall have received the ratings indicated in the free writing prospectus identified as Item 3 in Schedule IV hereto from the nationally recognized statistical rating organizations named therein.
(n) The Underwriters shall have received on the Closing Date a certificate dated the Closing Date, signed by an executive officer of the Parent Guarantor and in form and substance reasonably satisfactory to you, with respect to the accuracy of certain statistical information included or other securities exercisable or exchangeable for or convertible into shares incorporated by reference in the Time of capital stock Sale Prospectus and the Prospectus.
(o) On the Closing Date, the representations and warranties of Aames Financial I the Depositary contained in this Agreement shall be true and correct as if made on the Closing Date (except to the extent that they relate solely to an earlier date, in which case they shall be true and correct as of such earlier date).
(p) On the Closing Date, the Class A Certificates and the Class B Certificates shall have been terminated or shall otherwise cease to be outstandingduly issued.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. (a) The obligations of the Underwriters hereunder to purchase Shares at on the First Closing Time Date or on each Date of DeliveryOption Closing Date, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement and the Power of Attorney on the date hereof and at on the First Closing Time Date and on each Date of DeliveryOption Closing Date, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective covenants and other obligations hereunder, hereunder and under the Custody Agreement and the Power of Attorney and to the satisfaction of the following further conditions at the First Closing Time Date or on each Date of DeliveryOption Closing Date, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at on the First Closing Time Date and on each Option Closing Date of Delivery an opinion of MayerBaker, BrownDonelson, Bearman, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PC, counsel for the Company and the Subsidiaries, and addressed to the Underwriters and dated the First Closing Date and each Option Closing Date, as applicable, and in form and substance satisfactory to Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for Underwriters.the Underwriters in the form of Exhibit D.
(gc) Each Selling Stockholder shall furnish to the Underwriters at the First Closing Date and on each Option Closing Date an opinion of counsel for the Selling Stockholders, addressed to the Underwriters and dated the First Closing Date and each Option Closing Date, as applicable, in form and substance satisfactory to Hunton & ▇▇▇▇▇▇▇▇ LLP in the form of Exhibit E.
(d) The Representative Underwriters shall have received from Ernst & Young LLP each of KPMG LLP, registered public accounting firm for the Company, and Parente ▇▇▇▇▇▇▇▇ LLP, letters dated, respectively, as of the date of this Agreement, the First Closing Time Date and each Date of DeliveryOption Closing Date, as the case may be, addressed to the RepresentativeUnderwriters, in form and substance satisfactory to the RepresentativeRepresentative and counsel for the Underwriters, relating containing statements to the financial statements, including any pro forma financial statements, effect that they are independent accountants with respect to the Company within the meaning of the Company Securities Act and the Subsidiariesapplicable published rules and regulations adopted by the Commission thereunder and the Public Company Accounting Oversight Board, and statements and information of the type ordinarily included in accountant's "comfort letters" to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement and the Prospectus (and the Representative shall have received an additional six conformed copies of such other matters customarily covered by comfort letters issued in connection with registered public offerings. accountants' letter for each of the several Underwriters); In the event that the letters referred to above set forth any changes in indebtednesscommon or preferred stock, increases in long-term debt or decreases in total assets or retained earnings total stockholders equity or increases any decrease in borrowingsconsolidated revenues or in the total or per share amounts of net income, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems and counsel for the Underwriters deem such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the RepresentativeRepresentative and counsel for the Underwriters, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative At the First Closing Date and each Option Closing Date, the Underwriters shall have received at the Closing Time from each of KPMG LLP and on each Date of Delivery the favorable opinion of Parente ▇▇▇▇▇▇▇▇ LLP, independent public or certified public accountants, a letter dated such date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (d) of this Section 6, except that the specified date referred to therein for the carrying out of procedures shall be no more than two business days prior to the First Closing Date or Option Closing Date, as the case may be (and the Representative shall have received an additional six conformed copies of such accountants' letter for each of the several Underwriters).
(f) The Underwriters shall have received at the First Closing Date and on each Option Closing Date, as applicable, the favorable opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, dated the First Closing Time Date or such Date of DeliveryOption Closing Date, addressed to the Representative Underwriters and in form and substance satisfactory to the RepresentativeUnderwriters.
(ig) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(jh) Prior to the First Closing Time Date and each Option Closing Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 any post-effective amendment to the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has or any supplement thereto shall have been issuedissued or be in effect, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Underwriters and counsel to the Underwriters; and (iii) none of the Registration Statement, Statement and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(ki) All filings Prior to the First Closing Date and each Option Closing Date, the Company shall have filed the Prospectus with the Commission (including the information required by Rule 424 430A under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430A, and such post-effective amendment shall have become effective; or, if the Company elected to rely upon Rule 434 under the Securities Act to have been filed by and obtained the Closing Time Underwriters' consent thereto, the Company shall have been made filed a term sheet with the Commission in the manner and within the applicable time period prescribed for such filing required by such RuleRule 424(b).
(lj) Between the time of execution of this Agreement and the First Closing Time Date or the relevant Option Closing Date of Delivery (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s 's sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in on the NYSENew York Stock Exchange.
(nl) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(om) The Representative Underwriters shall have received lock-up agreements from each officer, director, officer and 1% or greater stockholder director of the Company and Aames Financial I, substantially in the form of Exhibit A B attached hereto, and such letter lock-up agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pn) The Company and each Transaction Party shallUnderwriters shall have received, at the First Closing Time Date and on each Date of DeliveryOption Closing Date, deliver to the Underwriters a certificate of its Chairman duly authorized officers of the BoardCompany and the Operating Partnership, Chief Executive Officer, President, Chief Operating Officer dated as of such First Closing Date or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableOption Closing Date, to the effect that the signers of such certificates have carefully examined the Prospectus, any amendment or supplement to the Prospectus and this Agreement, and that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereof, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of themthereto, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as date of which information is given the most recent financial statements included in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness capitalization of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or the capital stock, limited liability company membership interests or units of limited partnership interest of any SubsidiarySubsidiary except, in the case of each of clauses (a) through (e) above, as disclosed in the Prospectus, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided.
(o) The Underwriters shall receive, that at the First Closing Date and on each Option Closing Date, a certificate delivered of the Secretary of the Company certifying as to (i) the Articles of Incorporation and any amendments thereto, (ii) the Bylaws and any amendments thereto, (iii) resolutions of the Board of Directors of the Company authorizing the execution and delivery of this Agreement and the other offering documents, (iv) the Certificate of Limited Partnership of the Operating Partnership and the Partnership Agreement and any amendments thereto, (v) correspondence with the Commission, (vi) a specimen Common Stock certificate, (vii) the number of shares of Common Stock authorized and reserved for issuance by the applicable officers Company and (viii) the minute books of SFP may omit the matters Company.
(p) Each Selling Stockholder will, at the First Closing Date and on each Option Closing Date, deliver to the Underwriters a certificate, to the effect that:
(i) the representations and warranties of such Selling Stockholder set forth in subclauses this Agreement, the Custody Agreement and the Power of Attorney are true and correct as of such date as if made on such date; and
(ii) such Selling Stockholder has complied with all the agreements and (iv) abovesatisfied all the conditions on its part to be performed or satisfied hereunder and under this Agreement, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Custody Agreement and may limit certification and may limit certification the Power of the matters set forth in subclause (iii) above Attorney at or prior to information, facts and events relating to SFPsuch date.
(q) The On the date hereof, the Company and the Selling Stockholders shall have furnished for review by the Underwriters copies of the Custody Agreement and the Power of Attorney executed by each Transaction Partyof the Selling Stockholders and such further information, certificates and documents as the Underwriters may reasonably request.
(r) The Company, the Operating Partnership and the Selling Stockholders, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus, the representations, warranties and statements of the Company Company, the Operating Partnership and the Selling Stockholders contained herein, in the Custody Agreement and in the Power of Attorney, and the performance by the Company Company, the Operating Partnership and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the First Closing Time Date or any Date of DeliveryOption Closing Date, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Medical Properties Trust Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Shareholders hereunder and under the Custody Documents on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Shareholders of their respective obligations hereunder, hereunder and under the Custody Documents and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer(i) T▇▇▇ ▇▇▇▇▇▇, BrownGeneral Counsel for the Company, and (ii) P▇▇▇▇ & Maw LLP▇▇▇▇▇▇▇▇, counsel Deputy General Counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery Option Closing Time and in form and substance satisfactory to Lord, Bissell & Brook LLP, counsel for the Underwriters, substantially to the effect as set forth on in Exhibit B C-1 and Exhibit C-2, respectively, attached hereto.;
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time an opinion of Mayer, Brown, J▇▇▇▇ & Maw LLPDay, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Option Closing Time, in form and substance satisfactory to Lord, Bissell & Brook, LLP, counsel for the Underwriters, substantially to the effect as set forth on in Exhibit C D attached hereto.
(c) The Company Each Selling Shareholder shall furnish to the Underwriters at the Closing Time and each Option Selling Shareholder shall furnish to the Underwriters on each Date of Delivery Option Closing Time an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed such Selling Shareholders reasonably satisfactory to the Underwriters, addressed to the Underwriters and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇Time, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ Lord, Bissell & ▇▇▇▇▇▇▇ Brook LLP, counsel for the Underwriters., substantially as set forth in Exhibit E attached hereto;
(gd) The Representative Representatives shall have received from Ernst & Young LLP LLP, letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of DeliveryOption Closing Time, as the case may be, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeRepresentatives, relating to the financial statements, including any pro forma financial statements, statements of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes change in indebtednessthe capital stock, increase in long-term debt or any decreases in total assets shareholders’ equity, operating income or retained earnings or increases in borrowingsnet income of the Company, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative Representatives deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the RepresentativeRepresentatives, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(he) The Representative Representatives shall have received at the Closing Time and on each Date of Delivery Option Closing Time, the favorable opinion of ▇▇▇▇▇▇ Lord, Bissell & ▇▇▇▇▇▇▇ Brook LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(if) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writingwriting prior to its filing.
(jg) Prior to the Closing Time and or each Date of Delivery Option Closing Time, as applicable, (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; (iii) the Registration Statement or any amendment thereto, in each case as of their respective effective dates, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iiiiv) none the Prospectus and the Disclosure Package, and any amendment or supplement thereto, as of the Registration Statementapplicable filing dates and at the Closing Time and each Option Closing Time, the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time, there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The required filings with respect to the Shares shall have been approved for listing in made with the NYSENasdaq Stock Market LLC.
(nk) The NASD shall not have raised any confirmed in writing that it has decided to raise no objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsarrangements and shall not have raised any such objection after the date of such confirmation.
(ol) The Representative Representatives shall have received lock-up agreements from each officer, director, director and 1% or greater stockholder of the Company and Aames Financial ISelling Shareholder, in the form of Exhibit A B attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under be furnished by A▇▇▇▇▇ ▇. ▇▇▇▇, Executive Vice President of the Registration Rights and Governance Agreement (as in effect Company, shall terminate on the date hereof) and include Shares owned by SFP in a registration statement filed by of his retirement from the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this AgreementCompany.
(pm) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of the Company signed by its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofof such certificate, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofof such certificate;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, individually which has or in the aggregate, has could be likely to have a Material Adverse Effect. provided.
(n) Each Selling Shareholder will, that at the certificate delivered by Closing Time, and each Option Selling Shareholder will, on each Option Closing Time, acting through an Attorney, deliver to the applicable officers of SFP may omit Underwriters a certificate, to the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause effect that:
(i) above to the representations, representations and warranties and agreements of SFP such Selling Shareholder set forth in this Agreement and may limit certification in the Custody Documents are true and may limit certification correct as of such date; and
(ii) such Selling Shareholder has complied with all the matters set forth in subclause (iii) above agreements and satisfied all the conditions on its part to information, facts be performed or satisfied hereunder and events relating under the Custody Documents at or prior to SFPthe date hereof.
(qo) The Company and each Transaction Partythe Selling Shareholders, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained hereinherein and in the Custody Documents, and the performance by the Company and the Transaction Parties Selling Shareholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. (a) The obligations of the Underwriters hereunder to purchase Shares at the Initial Sale Time, the Closing Time or on each Date of Deliveryat any Option Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement and Power of Attorney on the date hereof and at the Initial Sale Time, the Closing Time and on each Date of Deliveryat such Option Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective obligations hereunder, hereunder and under the Custody Agreement and Power of Attorney and the satisfaction of the following further conditions at the Closing Time or on each Date of Deliveryand at such Option Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Option Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇ Frome ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.the Company and the Subsidiaries, addressed to the Underwriters and dated the Closing Time or such Option Closing Time, as the case may be, and in form and substance satisfactory to LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriters in substantially the form annexed hereto as Exhibit B.
(gc) The Company shall furnish to the Underwriters at the Closing Time and at each Option Closing Time an opinion of ▇▇▇▇▇ & Lardner LLP, special regulatory counsel for the Company and the Subsidiaries, addressed to the Underwriters and dated the Closing Time or such Option Closing Time, as the case may be, and in form and substance satisfactory to LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriters in substantially the form annexed hereto as Exhibit C.
(d) Each Selling Stockholder selling Initial Shares shall furnish to the Underwriters at the Closing Time and each Selling Stockholder selling Option Shares at any Option Closing Time shall furnish to the Underwriters at each such Option Closing Time an opinion of its counsel, addressed to the Underwriters and dated the Closing Time or such Option Closing Time, as the case may be, and in form and substance satisfactory to LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriters in the form annexed hereto as Exhibit D.
(e) The Representative shall have received from Ernst Deloitte & Young LLP Touche LLP, letters dated, respectively, as of the date of this AgreementAgreement (in respect of the Disclosure Package), the Closing Time and each Date of DeliveryOption Closing Time, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, statements of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes [in indebtedness], decreases [in total assets or retained earnings earnings] or increases [in loss and loss adjustment expense reserves or borrowings], it shall be a further condition to the obligations of the Underwriters that (Ai) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (Bii) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hf) The Representative shall have received at the Closing Time and on at each Date of Delivery Option Closing Time the favorable opinion of LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(ig) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jh) Prior to the Initial Sale Time, the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) the Company shall have responded to all comments and all requests for additional information on by the part Commission to the reasonable satisfaction of the Commission Representative; (iii) the Registration Statement or any amendments thereto, as of its effective date and at the Initial Sale Time, the Closing Time and each Option Closing Time, as applicable, shall have been complied withnot contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iiiiv) none the Disclosure Package as of the effective date of the Registration StatementStatement or the Final Prospectus as of its date and at the Initial Sale Time, the Prospectus nor the S-4 Closing Time and each Option Closing Time, as applicable, shall not contain an untrue statement of a material fact or 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.
(ki) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time or the Option Closing Time, as applicable, shall have been made within the applicable time period prescribed for such filing by such Rule.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change Change, and (ii) no transaction which that is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in inclusion on the NYSENasdaq National Market, subject only to official notice of issuance.
(nl) The NASD shall have confirmed in writing that it has decided not have raised to raise any objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsarrangements and shall not have raised any such objection after the date of such confirmation.
(om) The Representative shall have received lock-up agreements from each officer, director, Selling Stockholder and 1% or greater stockholder of the Company and Aames Financial Iholder of a security convertible or exercisable into 1% or more of the Company’s common shares, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pn) The Company and each Transaction Party shallshall have delivered to the Underwriters, at the Closing Time and on at each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Financial Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofof such certificate, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofof such certificate;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or or, to such officers’ knowledge, threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofof such certificate, the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto did not and do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Prospectus, statements therein not misleading; the S-4, Prospectus and the Disclosure Package and any amendments or supplements to any of them, thereto did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus which or the Disclosure Package that has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss (other than a loss occurring under an insurance policy issued by a Subsidiary in the ordinary course of business) or damage (whether or not insured) to the property of the Company or any subsidiary which that has been sustained or will have been sustained whichthat has, or would reasonably be expected to have, individually or in the aggregate, has a Material Adverse Effect. provided.
(o) Each Selling Stockholder that is selling Initial Shares shall have delivered to the Underwriters at the Closing Time and each Selling Stockholder that is selling Option Shares at any Option Closing Time shall have delivered to the Underwriters at each such Option Closing Time, that a certificate to the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause effect that:
(i) above to the representations, representations and warranties and agreements of SFP such Selling Stockholder set forth in this Agreement and may limit certification in the Custody Agreement and may limit certification Power of Attorney are true and correct as of the matters set forth date of the certificate; and
(ii) such Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder and under the Custody Agreement and Power of Attorney at or prior to the date of the certificate.
(p) At the date of this Agreement, the Representative shall have received Forms W-8 BEN or W-9 (or other applicable form or statement specified by Treasury Department regulations in subclause (iii) above to informationlieu thereof), facts and events relating to SFPsigned by each Selling Stockholder.
(q) The Company and each Transaction Partythe Selling Stockholders, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Selling Stockholders contained hereinherein and in the Custody Agreement and Power of Attorney, and the performance by the Company and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Deliveryand at each Option Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase and pay for the Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Operating Partnership in Section 3 hereof, in each case on the date hereof and at the Closing Time and on each Date of Delivery, as if made on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, to the performance in all material respects by the Company and the Transaction Parties Operating Partnership of their respective obligations hereunder, hereunder to be performed at or prior to the Closing Time and to the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion and letter of Mayer, Brown, ▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇▇ LLP, corporate counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery and substantially to the effect Delivery, as set forth on Exhibit in Exhibits A and B hereto, respectively.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of Delivery, as set forth in Exhibit C hereto.
(c) On the case may bedate of this Agreement and at the Closing Time and each Date of Delivery (if applicable), the Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated the respective dates of delivery thereof and addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the RepresentativeUnderwriters, relating containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Financial Statements and certain financial statements, including any pro forma financial statements, information of the Company and the SubsidiariesSubsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event ; provided, that the letters referred delivered at the Closing Time and each Date of Delivery (if applicable) shall use a “cut-off” date no more than three business days prior to above set forth any changes in indebtednesssuch Closing Time or such Date of Delivery, decreases in total assets or retained earnings or increases in borrowingsas the case may be.
(d) The Underwriters shall have received at the Closing Time and on each Date of Delivery (i) an opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, it shall be a further condition to counsel for the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company Underwriters, as to the significance thereof, unless the Representative deems such explanation unnecessarycertain federal income tax matters, and (Bii) such changesan opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, decreases or increases do notcounsel for the Underwriters, as to certain matters under the Investment Company Act, addressed to the Underwriters and dated the Closing Time and each Date of Delivery, as set forth in Exhibits D and E hereto, respectively. In addition, the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative Underwriters shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the underwriters, dated the Closing Time or such and each Date of Delivery, addressed to the Representative Underwriters and in form and substance satisfactory to the RepresentativeRepresentatives.
(ie) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Representatives shall have reasonably objected in writingwriting prior to the filing thereof.
(jf) Prior to the Closing Time and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all reasonable requests for additional information on the part of the Commission shall have been complied with; and (iii) none with to the reasonable satisfaction of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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 misleadingRepresentatives.
(kg) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Delivery, (i) there shall not have been any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementProspectus and the Disclosure Package.
(mi) The Shares shall have been approved for listing in on the NYSE, subject to notice of issuance.
(nj) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, substantially in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed F hereto signed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth persons listed in Section 4(q)(E) of this AgreementSchedule III hereto.
(pk) The Company and each Transaction Party shallRepresentatives shall have received, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman two of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableCompany’s executive officers, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or such Date of Delivery, as applicable, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements of their respective obligations hereunder and satisfied in all material respects all of the conditions on its their part to be performed or satisfied at or prior to the date hereofClosing Time or such Date of Delivery, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (aA) any Material Adverse Change, (bB) any transaction that is material to the Company and the Subsidiaries considered its subsidiaries taken as one enterprise, except transactions entered into in the ordinary course of businessa whole, (cC) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprisea whole, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (dD) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered its subsidiaries, taken as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiarya whole, or (fE) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Properties which has been sustained or will have been sustained which, individually or in the aggregate, has which would reasonably be expected to have a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFP.
(ql) The Company and each Transaction Party, as applicable, the Operating Partnership shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company and the Operating Partnership contained herein, and the performance by the Company and the Transaction Parties Operating Partnership of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters may have reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable requested prior to the Representativedate hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder Operating Partnership on the date hereof and hereof, at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, (ii) the accuracy of the statements of the officers of the Company and the Operating Partnership made in any certificate pursuant to the provisions hereof as of the date of such certificate, (iii) the performance in all material respects by the Company and the Transaction Parties Operating Partnership of all of their respective covenants and other obligations hereunder, hereunder and (iv) the satisfaction of the following further other conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish or cause to be furnished to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Option Closing Time the opinion and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion negative assurance letter of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters datedthe Company, respectively, as of each addressed to the date of this Agreement, Representatives and dated the Closing Time and each Date of DeliveryOption Closing Time, each in substantially the form attached hereto as Exhibit D-1. In addition, the case may be, addressed Company shall furnish or caused to be furnished to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, tax counsel for the Company, regarding certain U.S. federal income tax matters, addressed to the Representatives and dated the Closing Time and each Option Closing Time, in substantially the form of Exhibit D-2 hereto.
(b) The Selling Stockholders shall furnish to the Underwriters at the Closing Time an opinion of Sidley Austin LLP and certain special counsel, or such other counsel acting on behalf of the Selling Stockholders, reasonably acceptable to the Representatives, addressed to the Representatives and dated the Closing Time, in substantially the form attached hereto as Exhibit F.
(c) The Underwriters shall have received at the Closing Time a favorable opinion and negative assurance letter of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters, dated the Closing Time, in form and substance satisfactory to the Representatives.
(d) The Representatives shall have received from KPMG LLP, “comfort” letters dated, respectively, as of the date hereof, the Closing Time or such Date of Deliveryand on each Option Closing Time, addressed to the Representative Representatives and in form and substance satisfactory to the RepresentativeRepresentatives.
(ie) The Representatives shall have received from McNair, McLemore, ▇▇▇▇▇▇▇▇▇▇▇▇ & Co., LLC, “comfort” letters dated, respectively, as of the date hereof, the Closing Time and on each Option Closing Time, addressed to the Representatives and in form and substance satisfactory to the Representatives.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Representatives shall have objected in writing.
(jg) Prior to the Closing Time and each Date of Delivery or any Option Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, issued and no proceedings for such purpose shall have been initiated or threatenedor, to the Company’s knowledge, threatened by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) any Option Closing Time, there shall not have been any material adverse change in the business, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries taken as a whole, whether or not arising in the ordinary course of business (a “Material Adverse Change and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementChange”).
(mj) The Shares shall have been approved for listing in on the NYSE, subject to official notice of issuance.
(nk) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative Representatives shall have received lock-up agreements from each officer, director, director and 1% or greater stockholder of the Company and Aames Financial I, Selling Stockholder in the form of attached hereto as Exhibit A attached heretoC, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Company and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver shall have delivered to the Underwriters Representatives a certificate of certificate, executed by its Chairman of the Board, Board of Directors and Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicableon behalf of the Company and the Operating Partnership, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or or, to their knowledge, threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of themthereto, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and the Registration Statement, the S-4Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any an untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock stock, membership interests, partnership interests, or ownership interests, as applicable, or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock stock, membership interests, partnership interests, or ownership interests, as applicable, of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses .
(iin) and Each Selling Stockholder (iv) above, may limit certification or one or more attorneys on behalf of the matters set forth in subclause Selling Stockholders) will, at the Closing Time, deliver to the Underwriters a certificate, to the effect that:
(i) above to the representations, representations and warranties and agreements of SFP such Selling Stockholder set forth in this Agreement and may limit certification in the Custody Agreement and may limit certification Power of Attorney are true and correct as of such date; and
(ii) such Selling Stockholder has complied with all the matters set forth in subclause (iii) above agreements and satisfied all the conditions on its part to informationbe performed or satisfied hereunder and under the Custody Agreement and Power of Attorney, facts and events relating as applicable at or prior to SFPsuch date.
(qo) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company of its covenants contained herein, and the Transaction Parties fulfillment of their any conditions contained herein, as of the Closing Time or any Option Closing Time, as the Underwriters may reasonably request.
(p) Each of the Selling Stockholders shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Disclosure Package and the Prospectus relating to such Selling Stockholder’s Selling Stockholder Information, as applicable, the respective representations, warranties and statements of such Selling Stockholder contained herein and in the Custody Agreement and Power of Attorney, as applicable, and the performance by such Selling Stockholder of such Selling Stockholder’s covenants contained herein and therein, as applicable, and the fulfillment of any conditions contained herein or therein, as applicable, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (MedEquities Realty Trust, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties Selling Shareholders hereunder and under the Custody Agreement and Power of Attorney on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company and the Transaction Parties Selling Shareholders of their respective obligations hereunder, hereunder and under the Custody Agreement and Power of Attorney and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Option Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.New York, Esq.New York, counsel for the Company’s Executive Vice President, Secretary Company and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be the Subsidiaries addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & in form and substance reasonably satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough LLP, special Washington, DC, counsel for SFPthe Underwriters, which opinion(sto the effect set forth substantially in Exhibit C.
(b) The Underwriters shall be have been furnished at the Closing Time and at each Option Closing Time an opinion of counsel with respect to the Selling Shareholders, addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger AgreementTime, which opinions and reliance letters shall be in form and substance reasonably satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
(gc) The On the date of this Agreement and at the Closing Time and each Option Closing Time (if applicable), the Representative shall have received from Ernst & Young each of ▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Inc. “comfort” letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered in forms heretofore approved by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hd) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time the favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of DeliveryOption Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(ie) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kh) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(li) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time there shall not have been any Material Adverse Change or any prospective Material Adverse Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mj) The Shares shall have been approved for listing inclusion in The Nasdaq Global Market subject only to notice of issuance at or prior to the NYSEtime of purchase.
(nk) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(ol) The Representative shall have received lockLock-up agreements from each officer, director, and 1% or greater stockholder Up Letter Agreements contemplated by Section 5(v) of the Company and Aames Financial I, in the form of Exhibit A attached hereto, this Agreement and such letter agreements Lock-Up Letter Agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pm) The Reorganization Transactions shall have been completed in all material respects as described in the Prospectus.
(n) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the Registration Statement, the Prospectus, the Disclosure Package, any amendment or supplement thereto, and this Agreement, and that when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofClosing Time or any Option Closing Time, as applicable, the Registration Statement and the Prospectus and the Preliminary Prospectus, and the S-4 and any amendments or supplements to any of them, thereto contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and any amendments thereto, did not and, as of the ProspectusClosing Time or any Option Closing Time, as applicable, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the S-4statements therein not misleading and the Prospectus and the Disclosure Package, and any amendments or supplements to any of themthereto, did not and as of the Closing Time or any Option Closing Time, as applicable, do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicableStatement, there has occurred no event required to be set forth in an amendment or supplemented supplement to the Prospectus or the Disclosure Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 the Prospectus and Prospectusthe Disclosure Package, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, except substantially as disclosed in the Prospectus and the Disclosure Package, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary Subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided.
(o) The Selling Shareholders will, that at the certificate delivered by Closing Time and the applicable officers of SFP may omit Option Closing Time, deliver to the matters set forth in subclauses (ii) and (iv) aboveUnderwriters a certificate, may limit certification of to the matters set forth in subclause effect that:
(i) above to the representations, representations and warranties and agreements of SFP the Selling Shareholders set forth in this Agreement and may limit certification in the Custody Agreement and may limit certification Power of Attorney are true and correct as of such date; and
(ii) the matters set forth in subclause (iii) above Selling Shareholders have complied with all the agreements and satisfied all the conditions on its part to information, facts be performed or satisfied hereunder and events relating under the Custody Agreement and Power of Attorney at or prior to SFPthe date hereof.
(qp) The Company and each Transaction Party, as applicable, the Selling Shareholders shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained hereinherein and in the Custody Agreement and Power of Attorney, and the performance by the Company and the Transaction Parties Selling Shareholders of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Shimmick Construction Company, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Transaction Parties Advisor hereunder on the date hereof and at the Closing Time (as if made on and on each Date as of Delivery, as applicablesuch date), the performance in all material respects by the Company Company, the Operating Partnership and the Transaction Parties Advisor of their respective obligations hereunder, hereunder and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableTime:
(a) The Company shall furnish to the Underwriters Representatives at the Closing Time and on each Date opinions of Delivery an opinion of Mayer, Brown, ▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇ LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction PartiesAdvisor, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time Time, and each Date of Delivery in form and substantially substance satisfactory to counsel for the Underwriters to the effect set forth on in Exhibit A and Exhibit B heretohereto and to such further effect as counsel to the Underwriters may reasonably request.
(b) The Company shall furnish to the Underwriters Representatives at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax in-house counsel for the Company, the Subsidiaries and each of the other Aames Transaction PartiesAdvisor, as to certain tax matters, which opinion shall be addressed to the Underwriters, Representatives and dated the Closing Time Time, and substantially in form and substance satisfactory to counsel for the Underwriters to the effect set forth on in Exhibit C heretohereto and to such further effect as counsel to the Underwriters may reasonably request.
(c) The Company shall furnish to the Underwriters Representatives at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ Lovells US LLP, special Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, Representatives and dated the Closing Time Time, and each Date of Delivery in form and substantially substance satisfactory to counsel for the Underwriters to the effect set forth on in Exhibit D heretohereto and to such further effect as counsel to the Underwriters may reasonably request.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative Representatives shall have received from Ernst & Young BDO USA, LLP letters dated, respectively, a letter dated as of the date of this Agreement, Agreement and the Closing Time and each Date of Delivery, as the case may beTime, addressed to the RepresentativeRepresentatives, in form and substance satisfactory to the Representative, Representatives relating to the combined financial statements, including any pro forma financial statements, statements of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In .
(e) The Representatives shall have received from Ernst & Young LLP a letter dated as of the event that the letters referred to above set forth any changes in indebtednessdate of this Agreement, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition addressed to the obligations of Representatives, in form and substance satisfactory to the Underwriters that (A) such letters shall be accompanied by a written explanation Representatives relating to the combined financial statements of the Company as to and the significance thereof, unless Subsidiaries and the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment financial statements of the Representative, make it impractical or inadvisable to proceed with the purchase PIM Highland Holding LLC and delivery of the Shares as contemplated by its subsidiaries and included in the Registration Statement, the General Disclosure Package and the Prospectus, and such other matters customarily covered by comfort letters issued in connection with registered public offerings.
(hf) The Representative Representatives shall have received at the Closing Time and on each Date of Delivery the favorable an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPDLA Piper LLP (US), dated counsel for the Closing Time or such Date of DeliveryUnderwriters, addressed to the Representative Representatives and dated the Closing Time, and in form and substance satisfactory to the RepresentativeRepresentatives.
(ig) No amendment or supplement to the Registration Statement Statement, the General Disclosure Package or the Prospectus shall have been filed to which the Underwriters shall have reasonably objected in writing.
(jh) Prior to the Closing Time and each Date of Delivery (i) the Registration Statement shall be effective with the Commission and no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus preliminary prospectus or Prospectus has shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representatives; and (iii) none of the Registration Statement, the General Disclosure Package and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(ki) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a Material Adverse Change Effect, whether or not arising in the ordinary course of business, and (ii) no transaction which that is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which that in the Representative’s Representatives’ sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in on the NYSENew York Stock Exchange, subject only to official notice of issuance.
(nl) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(m) The Articles Supplementary shall have been accepted for record by the Maryland State Department of Assessments and Taxation and shall be effective under the Maryland General Corporation Law.
(n) The Representatives shall have received a copy of the Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
(o) The Representative Representatives shall have received lock-up agreements from each officer, director, and 1% at or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(p) The Company and each Transaction Party shall, at before the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Company’s Chief Executive Officer, President, President or Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act; and
(iii) subsequent to the respective dates as of which information is given in the General Disclosure Package or the Prospectus, there has not been (A) any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a Material Adverse Effect, whether or not arising in the ordinary course of business, (B) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, (C) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (E) any dividend or distribution of any kind declared, paid or made on the capital stock or other equity interests of the Company or any Subsidiary, or (F) any loss or damage (whether or not insured) to the property of the Company or any Subsidiary that has been sustained or will have been sustained that has or may reasonably be expected to have a Material Adverse Effect.
(p) The Representatives shall have received at or before the Closing Time a certificate of the Advisor’s Chief Executive Officer, President or Chief Operating Officer and Chief Accounting Officer or Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Advisor in this Agreement are true and correct, as if made on and as of such date, and the Advisor has complied with all material respects the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and General Disclosure Package or the Prospectus, there has not been (aA) any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have an Advisor Material Adverse ChangeEffect, whether or not arising in the ordinary course of business, or (bB) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPAdvisor.
(q) The Representatives shall have received as of the date of this Agreement and the Closing Time, an officers’ certificate, executed on behalf of the Company by the Chief Financial Officer of the Company and each Transaction Partythe Chief Accounting Officer of the Company in form and substance satisfactory to counsel for the Underwriters.
(r) The Company, as applicable, the Operating Partnership and the Advisor shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the General Disclosure Package and the Prospectus, the representations, warranties and statements of the Company Company, the Operating Partnership and the Advisor contained herein, and the performance by the Company Company, the Operating Partnership and the Transaction Parties Advisor of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryTime, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters Underwriter hereunder to purchase Shares at the Closing Time or on each Date of Delivery, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company Company, the Operating Partnership and the Transaction Parties Advisor hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicableapplicable (as if made on and as of such date), the performance in all material respects by the Company Company, the Operating Partnership and the Transaction Parties Advisor of their respective obligations hereunder, hereunder and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters Underwriter at the Closing Time and on each Date of Delivery, as applicable, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company and the Subsidiaries, addressed to the Underwriter and dated the Closing Time and each Date of Delivery, as applicable, and in form and substance satisfactory to counsel for the Underwriter to the effect set forth in Exhibit A and Exhibit B hereto and to such further effect as counsel to the Underwriter may reasonably request.
(b) The Company shall furnish to the Underwriter at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, in-house counsel for the CompanyCompany and the Subsidiaries, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriter and dated the Closing Time and each Date of Delivery and substantially in form and substance satisfactory to counsel for the Underwriter to the effect set forth on in Exhibit B hereto.
(b) The Company shall furnish C hereto and to such further effect as counsel to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C heretoUnderwriter may reasonably request.
(c) The Company shall furnish to the Underwriters Underwriter at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, ▇ Lovells US LLP, special Maryland counsel for of the Company, which opinion(s) shall be addressed to the Underwriters, Underwriter and dated the Closing Time and each Date of Delivery and substantially in form and substance satisfactory to counsel for the Underwriter to the effect set forth on in Exhibit D heretohereto and to such further effect as counsel to the Underwriter may reasonably request.
(d) The Company shall furnish to the Underwriters Underwriter at the Closing Time and on each Date of Delivery Delivery, as applicable, an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwritersthe Advisor, addressed to the Underwriter and dated the Closing Time and each Date of Delivery, as applicable, and in form and substance satisfactory to counsel for the Underwriter to the effect set forth in Exhibit E hereto and to such further effect as counsel to the Underwriter may reasonably request.
(ge) The Representative Underwriter shall have received from Ernst & Young LLP letters dated, respectively, a letter dated as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, addressed to the RepresentativeUnderwriter, in form and substance satisfactory to the Representative, Underwriter relating to the combined financial statements, including any pro forma financial statementsstatements (if any), of the Company and the SubsidiariesCompany, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hf) The Representative Underwriter shall have received at the Closing Time and on each Date of Delivery the favorable opinion of Hunton & ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative Underwriter and in form and substance satisfactory to the RepresentativeUnderwriter.
(ig) No amendment or supplement to the Registration Statement Statement, the General Disclosure Package or the Prospectus shall have been filed to which the Underwriters Underwriter shall have reasonably objected in writing.
(jh) Prior to the Closing Time and each Date of Delivery (i) the Registration Statement shall be effective with the Commission and no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus preliminary prospectus or Prospectus has shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Underwriter; and (iii) none of the Registration Statement, the General Disclosure Package and the Prospectus nor the S-4 shall not contain an untrue statement of a material fact or 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.
(ki) All filings with the Commission required by Rule 424 and Rule 430B under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such RuleRules.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) there shall not have been any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a Material Adverse Change Effect, whether or not arising in the ordinary course of business, and (ii) no transaction which that is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which that in the RepresentativeUnderwriter’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in on the NYSENew York Stock Exchange, subject only to official notice of issuance.
(nl) The NASD FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(om) The Representative Underwriter shall have received lock-up agreements from each officer, director, executive officer and 1% or greater stockholder director of the Company and Aames Financial I, substantially in the form of Exhibit A attached F hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pn) The Company and each Transaction Party shall, Underwriter shall have received at or before the applicable Closing Time and on each the applicable Date of Delivery, deliver to the Underwriters a certificate of its the Company’s Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties Operating Partnership in this Agreement are true and correct, as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has the Operating Partnership have complied in all material respects with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act; and
(iii) subsequent to the respective dates as of which information is given in the General Disclosure Package or the Prospectus, there has not been (A) any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a Material Adverse Effect, whether or not arising in the ordinary course of business, (B) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, (C) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (E) any dividend or distribution of any kind declared, paid or made on the capital stock or other equity interests of the Company or any Subsidiary, or (F) any loss or damage (whether or not insured) to the property of the Company or any Subsidiary that has been sustained or will have been sustained that has or may reasonably be expected to have a Material Adverse Effect.
(o) The Underwriter shall have received at or before the applicable Closing Time and on the applicable Date of Delivery, a certificate of the Advisor’s Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Advisor in this Agreement are true and correct, as if made on and as of such date, and the Advisor has complied with all material respects the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iviii) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and General Disclosure Package or the Prospectus, there has not been (aA) any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have an Advisor Material Adverse ChangeEffect, whether or not arising in the ordinary course of business, or (bB) any transaction that is material to the Advisor.
(p) The Underwriter shall have received as of the date of this Agreement, the Closing Time and each Date of Delivery, as the case may be, an officers’ certificate, executed on behalf of the Company and by the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course Chief Financial Officer of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness Chief Accounting Officer of the Company or any Subsidiary that is material in form and substance satisfactory to counsel for the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPUnderwriter.
(q) The Company Company, the Operating Partnership and each Transaction Party, as applicable, the Advisor shall have furnished to the Underwriters Underwriter such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the General Disclosure Package and the Prospectus, the representations, warranties and statements of the Company Company, the Operating Partnership and the Advisor contained herein, and the performance by the Company Company, the Operating Partnership and the Transaction Parties Advisor of their respective covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of Delivery, as the Underwriters Underwriter may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Conditions of the Underwriters’ Obligations. The several obligations of the Underwriters hereunder to purchase Shares at and pay for the Closing Time or on each Date of Delivery, as applicable, Certificates pursuant to this Agreement are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of Delivery, as applicable, the performance in all material respects by the Company and the Transaction Parties of their respective obligations hereunder, and the satisfaction of the following further conditions at the Closing Time or on each Date of Delivery, as applicableconditions:
(a) The Company shall furnish to the Underwriters at On the Closing Time and on each Date of Delivery an opinion of MayerDate, Brown, ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative you shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time opinions and each Date of Delivery, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion negative assurance statement of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, outside counsel for the Company and Parent Guarantor, dated the Closing Time or such Date of Delivery, and addressed to the Representative and Underwriters, in form and substance reasonably satisfactory to you.
(b) On the RepresentativeClosing Date, you shall have received an opinion of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., regulatory counsel of the Company and the Parent Guarantor, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you.
(c) On the Closing Date, you shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for Wilmington Trust Company, individually and as the Loan Trustee, Subordination Agent and Trustee, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to you.
(d) On the Closing Date, you shall have received an opinion of Ray, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Escrow Agent, dated the Closing Date, in form and substance reasonably satisfactory to you.
(e) On the Closing Date, you shall have received (i) an opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel for the Liquidity Provider, and (ii) an opinion of in-house counsel for the Liquidity Provider, in each case in form and substance reasonably satisfactory to you and dated the Closing Date.
(f) On the Closing Date, you shall have received an opinion of in-house counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to you.
(g) On the Closing Date, you shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇ LLP, special New York counsel for the Depositary, dated the Closing Date, in form and substance reasonably satisfactory to you.
(h) On the Closing Date, you shall have received an opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated as of the Closing Date and addressed to the Underwriters, with respect to the issuance and sale of the Certificates, the Registration Statement, the Time of Sale Prospectus, the Prospectus and other related matters as the Underwriters may reasonably require.
(i) No amendment or supplement Subsequent to the Registration Statement or Prospectus shall have been filed to which the Underwriters shall have objected in writing.
(j) Prior to the Closing Time execution and each Date of Delivery (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary Prospectus or Prospectus has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 shall contain an untrue statement of a material fact or 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.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution delivery of this Agreement and prior to the Closing Time or the relevant Date of Delivery Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any Material Adverse Change and intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company, the Parent Guarantor or any of their respective subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) no transaction which there shall not have occurred any change, or any development reasonably likely to involve a change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company, the Parent Guarantor and their respective subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiariesadverse and that makes it, in each case, which in the Representative’s sole your judgment, makes it impracticable or inadvisable to proceed with the completion of the public offering of the Shares as Certificates on the terms and in the manner contemplated by the Registration Statement, and the Time of Sale Prospectus.
(mj) The Shares shall have been approved for listing in the NYSE.
(n) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(o) The Representative Underwriters shall have received lock-up agreements from each on the Closing Date (i) a certificate dated the Closing Date, addressed to the Underwriters and signed by an executive officer of the Company, in such officer, director, and 1% or greater stockholder ’s capacity as an officer of the Company and Aames Financial I, in the form of Exhibit A attached hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by Company’s behalf, to the Company under the Securities Act so long as such registration statement complies with the restrictions thereon effect set forth in Section 4(q)(E3(i)(i) of this Agreement.
(p) The Company above and each Transaction Party shall, at the Closing Time and on each Date of Delivery, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
: (i1) the representations and warranties of the Company and the Transaction Parties contained in this Agreement are true and correct, as if made on and correct as of the date hereof, Closing Date and (2) the Company and each Aames Transaction Party has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied at hereunder on or prior to before the date hereof;
Closing Date and (ii) no stop order suspending a certificate dated the effectiveness Closing Date, and signed by an executive officer of the Registration Statement Parent Guarantor, in such officer’s capacity as an officer of the Parent Guarantor and on the Parent Guarantor’s behalf, to the effect set forth in Section 3(i)(i) above and to the effect that: (1) the representations and warranties of the Parent Guarantor contained in this Agreement are true and correct as of the Closing Date and (2) the Parent Guarantor has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or any post-effective amendment thereto satisfied hereunder on or before the S-4Closing Date. Each of the officers signing and delivering the respective certificates contemplated in clauses (i) and (ii) may rely upon the best of his or her knowledge as to proceedings threatened.
(k) You shall have received from KPMG LLP, (i) a letter, dated no later than the date hereof and no order directed at any document addressed to the Underwriters, in form and substance satisfactory to you, 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 included or incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when in the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereofStatement, the Registration Statement preliminary prospectus and the Prospectus, and (ii) a letter, dated the S-4 Closing Date and any amendments or supplements addressed to any the Underwriters, which meets the above requirements, except that the specified date therein referring to certain procedures performed by KPMG LLP will not be a date more than three business days prior to the Closing Date for purposes of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations this subsection.
(l) Each of the Commission thereunderAppraisers shall have furnished to you a letter from such Appraiser, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material addressed to the Company and the Subsidiaries considered as one enterpriseParent Guarantor and dated the Closing Date, except transactions entered into in confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the ordinary course Company, the Parent Guarantor or any of businesstheir respective affiliates, (cii) does not have any obligationsubstantial interest, direct or contingentindirect, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of businessCompany, (d) any change in the capital stock or outstanding indebtedness of the Company Parent Guarantor or any Subsidiary that is material to the Company of their respective affiliates and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to informationis not connected with the Company, facts and events relating to SFPthe Parent Guarantor or any of their respective affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(qm) The Company At the Closing Date, each of the Operative Agreements (other than the Assignment and each Transaction Party, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement Assumption Agreements and the Prospectus, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective covenants contained herein and therein, and the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of Delivery, as the Underwriters may reasonably request.
(rFinancing Agreements) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized executed and delivered by all necessary corporate action on the part each of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreementparties thereto.
(sn) All outstanding optionsOn the Closing Date, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I the Class A Certificates and the Class B Certificates shall have been terminated or shall otherwise cease to be outstandingreceived the ratings indicated in the free writing prospectus identified as Item 3 in Schedule IV hereto from the nationally recognized statistical rating organizations named therein.
(to) None of SFP or any of its affiliates, The Underwriters shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under received on the Closing Date a certificate dated the Closing Date, signed by an executive officer of the Parent Guarantor and in accordance form and substance reasonably satisfactory to you, with Section 262 respect to the accuracy of certain statistical information included or incorporated by reference in the Delaware General Corporation LawTime of Sale Prospectus and the Prospectus.
(up) SFP On the Closing Date, the representations and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor warranties of the approval of the Mergers Depositary contained in this Agreement shall be true and (B) against any action, proposal (including any Superior Proposal, correct as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following if made on the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable Date (except to the Representativeextent that they relate solely to an earlier date, in which case they shall be true and correct as of such earlier date).
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Initial Shares from the Company and the Option Shares, if any, from the Selling Stockholders at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to (i) the accuracy of the representations and warranties on the part of (a) the Company under this Agreement and (b) the Transaction Parties Selling Stockholders hereunder and under the Custody Agreement and Power of Attorney, in each case, on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, (ii) the performance in all material respects by the Company and the Transaction Parties Selling Stockholders of their respective obligations hereunderhereunder and, with respect to the Selling Stockholders, under the Custody Agreement and Power of Attorney, and (iii) the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time, if any, an opinion of Mayer, Brown, ▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇ LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery Option Closing Time and in form and substance reasonably satisfactory to Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, in substantially to the effect set forth on form attached hereto as Exhibit B hereto.C.
(b) The Company Each Selling Stockholder marked with an asterix on Schedule I shall furnish to the Underwriters at the Closing Time and on each Date of Delivery Option Closing Time, if any, an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Companysuch Selling Stockholder and its affiliates, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the each Option Closing Time and substantially in form and substance reasonably satisfactory to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Akin Gump ▇▇▇▇▇▇▇ ▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated in substantially the form attached hereto as Exhibit D.
(c) On the date of this Agreement and at the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Option Closing Time and on each Date of Delivery a letter permitting them to rely upon (if applicable), the opinions given in connection with the Merger AgreementRepresentative shall have received from Ehrhardt, which opinions and reliance letters shall be in form and substance satisfactory to Keefe, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP PC letters dated, respectively, as dated the respective dates of the date of this Agreement, the Closing Time delivery thereof and each Date of Delivery, as the case may be, addressed to the RepresentativeRepresentative and the board of directors to the Company, in form and substance satisfactory to the Representative, relating containing statements and information of the type specified in AU Section 634 "Letters for Underwriters and Certain other Requesting Parties" of Certified Public Accountants with respect to the financial statements, including any pro forma and certain financial statements, numbers of the Company included in the Registration Statement, the Prospectus and the SubsidiariesDisclosure Package, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a "cut off" date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be. In the event that the letters referred to above set forth any material changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole reasonable judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hd) The Representative shall have received at the Closing Time and on each Date of Delivery Option Closing Time, if any, the favorable opinion of ▇▇▇▇▇▇ & Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ LLP, counsel to the Underwriters, dated the Closing Time or such Date Option Closing Time, if any, addressed to the Underwriters and in form and substance reasonably satisfactory to the Representative.
(e) The Representative shall have received from the Reserve Engineers' letters dated, respectively, as of Deliverythe date hereof and the Closing Time, addressed to the Representative and in form and substance satisfactory to the Representative.
(if) The Registration Statement shall have become effective not later than 5:00 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve.
(g) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters Representative shall have objected in writingwriting prior to its filing.
(jh) Prior to the Closing Time and each Date of Delivery Option Closing Time (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied withwith to the reasonable satisfaction of the Representative; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ki) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rulerule.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery (i) Option Closing Time, if any, there shall not have been occurred or become known to the Company any Material Adverse Change Change, and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which that has not been fully and accurately disclosed in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration StatementDisclosure Package and Prospectus.
(mk) The Shares shall have been approved for listing inclusion in the NYSENasdaq, subject only to official notice of issuance.
(nl) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(om) The Representative shall have received lock-up agreements from each officeras set forth in Sections 4(A)(t) and (B)(b).
(n) The Company shall have delivered to the Underwriters a certificate, director, and 1% executed by the Secretary or greater stockholder Assistant Secretary of the Company and Aames Financial Idated as of the Closing Time and Option Closing Time, if any, as to (i) the resolutions adopted by the Company's board of directors in form and substance reasonably acceptable to the form Representative, (ii) the Company's certificate of Exhibit A attached heretoincorporation, as amended and such letter agreements shall be in full force and effect; provided(iii) the Company's bylaws, howeveras amended, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (each as in effect on at the date hereof) Closing Time and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this AgreementOption Closing Time, if any.
(po) The Company and each Transaction Party shallwill, at the Closing Time and on each Date of DeliveryOption Closing Time, deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or Chief Financial Officer, General Partner or Managing Member, as applicable, to the effect that:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, in all material respects, as if made on and as of the date hereofClosing Time or any Option Closing Time, as applicable, (except to the extent that such representations and the Company warranties speak as of another date, in which case such representations and each Aames Transaction Party has complied warranties shall be true and correct in all material respects as of such other date);
(ii) the conditions set forth in Section 6(h) shall have been satisfied and be true and correct;
(iii) the Company has complied with all the covenants and agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied under this Agreement at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the Registration Statement Closing Time or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement and S-4 became effective and at all times subsequent thereto up to the date hereof, the Registration Statement and the Prospectus, and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4Option Closing Time, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and;
(iv) subsequent to between the respective dates date of this Agreement and the Closing Time or each Option Closing Time, as of which information is given in the Registration Statement, S-4 and Prospectusapplicable, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterpriseCompany, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the SubsidiariesCompany, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterpriseCompany, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any SubsidiaryCompany, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, which has a Material Adverse Effect. provided.
(p) The DLJ Funds will, that at the certificate delivered by Closing Time and on each Option Closing Time, deliver to the applicable officers of SFP may omit Underwriters a certificate, to the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause effect that:
(i) above to the representations, representations and warranties and agreements of SFP such Selling Stockholder set forth in this Agreement and may limit certification in the Custody Agreement and may limit certification Power of Attorney are true and correct as of such date; and
(ii) such Selling Stockholder has complied with all the matters set forth in subclause (iii) above agreements and satisfied all the conditions on its part to informationbe performed or satisfied hereunder and under this Agreement, facts the Custody Agreement and events relating Power of Attorney at or prior to SFPthe date hereof.
(q) The Company and each Transaction Partythe Selling Stockholders, as applicable, shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in (i) the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, (ii) the representations, warranties and statements of the Company contained herein, (iii) the representations, warranties and statements of the Selling Stockholders contained herein and in the Custody Agreement and Power of Attorney, (iv) the performance by the Company and the Transaction Parties Selling Stockholders of their respective covenants contained herein and therein, and (v) the fulfillment of any conditions contained herein or therein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters may reasonably request.
(r) (A) The Merger Agreement effecting the First Merger and the Second Merger shall have been duly authorized by all necessary corporate action on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreement.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Pinnacle Gas Resources, Inc.)
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on at each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time (if applicable) an opinion and 10b-5 statement of Mayer, Brown, K▇▇▇▇▇ ▇▇▇▇ & Maw LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇W▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters datedthe Company, respectively, as of addressed to the date of this Agreement, Underwriters and dated the Closing Time and each Date of Deliveryor the applicable Option Closing Time, as the case may be, addressed to the Representative, in form and substance satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(h) The Representative shall have received at the Closing Time and on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Time or such Date of Delivery, addressed to the Representative and in form and substance satisfactory to the Representative.
(ib) On the date of this Agreement and at the Closing Time and at each Option Closing Time (if applicable), the Representative shall have received from M▇▇▇▇▇ LLP letters addressed to the Representative and dated the respective dates of delivery thereof and in form and substance satisfactory to the Representative, containing statements and information of the type customarily covered by an accountant’s “comfort letters” to underwriters delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin) issued in connection with underwritten public offerings including, without limitation, the audited and unaudited financial statements and the various other financial disclosures including any pro forma financial statements contained in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letters delivered at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more than three business days prior to such Closing Time or such Option Closing Time, as the case may be.
(c) The Representative shall have received at the Closing Time and at each Option Closing Time (if applicable) an opinion and 10b-5 statement of N▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & S▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, addressed to the Representative and dated the Closing Time or the applicable Option Closing Time, as the case may be, and in form and substance satisfactory to the Representative.
(d) The Representative shall have received at the Closing Time and at each Option Closing Time (if applicable) an opinion of Nevada counsel to the Company, addressed to the Representative and dated the Closing Time or the applicable Option Closing Time, as the case may be, and in form and substance satisfactory to the Representative.
(e) The Registration Statement shall have become effective not later than 5:30 p.m., New York City time, on the date of this Agreement, or such later time and date as the Representative shall approve. If Rule 430A under the Securities Act is used, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act at or before 5:30 p.m., New York City time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act).
(f) Any Rule 462(b) Registration Statement required to be filed prior to the sale of the Shares under the Securities Act shall have been filed on the date hereof and shall have become automatically effective upon such filing.
(g) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(jh) Prior to the Closing Time and each Date of Delivery Option Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatenedor, to the Company’s knowledge, threatened by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company shall not have become the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares.
(ki) All filings with the Commission required by Rule 424 under the Securities Act (including the information required by Rule 430A under the Securities Act) to have been filed by the Closing Time shall have been made in the manner and within the applicable time period prescribed for such filing by such Rule.
(lj) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Option Closing Time, (i) there shall not have been any Material Adverse Change Change; and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mk) The Shares shall have been approved for listing in the NYSEon Nasdaq, subject to official notice of issuance.
(nl) The NASD FINRA shall not have raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsor other arrangements of the transactions contemplated hereby.
(om) The On or prior to the date hereof, the Representative shall have received lockLock-up agreements Agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of Exhibit A attached heretoLock-Up Persons, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pn) The Company and each Transaction Party shallshall furnish to the Underwriters, at the Closing Time and on at each Date of DeliveryOption Closing Time (if applicable), deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or its Chief Financial Officer, General Partner dated the Closing Time or Managing Member, as applicablethe applicable Option Closing Time, to the effect that:
(i) the representations representations, warranties, and warranties covenants of the Company and the Transaction Parties in this Agreement are true and correct, with the same force and effect as if made on and as of the date hereofsuch date, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed under this Agreement or satisfied at or prior to the date hereofsuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) has been issued and no proceedings for that purpose have been instituted or are pending or threatened by the Commission under the Securities Act;; and
(iii) when for the Registration Statement period from and S-4 became effective including the date of this Agreement through and at all times subsequent thereto up including such date, there has not occurred any Material Adverse Change.
(o) The Company shall furnish to the Underwriters, as of the date hereof, at the Registration Statement Closing Time and at each Option Closing Time (if applicable), a certificate of its Chief Financial Officer, dated the Closing Time or the applicable Option Closing Time, with respect to certain financial data contained in the Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed substance satisfactory to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPRepresentative.
(qp) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters and counsel for the Underwriters such other documents information, documents, opinions and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters or their counsel may reasonably request, and all proceedings taken by the Company in connection with the issuance and sale of the Shares as contemplated herein and in connection with the other transactions contemplated by this Agreement shall be satisfactory in form and substance to the Representative and counsel for the Underwriters.
(q) Prior to the Closing Time, the Preferred Stock Conversion, including the related amendments to the Company’s organizational documents, shall have been duly completed and effective.
(r) (A) The Merger Stock Split shall be effective prior to the Closing Time. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement effecting may be terminated by the First Merger and Representative by notice from the Second Merger Representative to the Company at any time on or prior to the Closing Time and, with respect to the Option Shares, at any time on or prior to the applicable Option Closing Time, which termination shall have been duly authorized by all necessary corporate action be without liability on the part of the Company, each Subsidiary and each Transaction Party, as applicable; (B) as of the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the transactions contemplated by this Agreement or otherwise adversely affect the ability of any party hereto to fulfill its obligations under this Agreementany other party, except that Sections 5, 7, and 9 shall at all times be effective and shall survive such termination.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company and the Transaction Parties hereunder on the date hereof and at the Closing Time and on each Date of DeliveryOption Closing Time, as applicable, the performance in all material respects by the Company of its obligations hereunder and the Transaction Parties of their respective obligations hereunder, and to the satisfaction of the following further conditions at the Closing Time or on each Date of DeliveryOption Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on at each Date of Delivery Option Closing Time (if applicable) an opinion and negative assurance letter of Mayer, Brown, Freshfields Bruckhaus D▇▇▇▇▇▇▇ & Maw US LLP, counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, which opinion(s) shall be addressed to the Underwriters, Underwriters and dated the Closing Time and each Date of Delivery and substantially to or the effect set forth on Exhibit B hereto.
(b) The Company shall furnish to the Underwriters at the applicable Option Closing Time and on each Date of Delivery an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Company, the Subsidiaries and each of the other Aames Transaction Parties, as to certain tax matters, which opinion shall be addressed to the Underwriters, dated the Closing Time and substantially to the effect set forth on Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇, LLP, Maryland counsel for the Company, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., the Company’s Executive Vice President, Secretary and General Counsel, as to certain licensing and regulatory matters, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit E hereto.
(e) SFP shall furnish to the Underwriters at the Closing Time and on each Date of Delivery an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for SFP, which opinion(s) shall be addressed to the Underwriters, dated the Closing Time and each Date of Delivery and substantially to the effect set forth on Exhibit F hereto.
(f) The Company shall furnish to the Underwriters at the Closing Time and on each Date of Delivery a letter permitting them to rely upon the opinions given in connection with the Merger Agreement, which opinions and reliance letters shall be in form and substance satisfactory to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Underwriters.
(g) The Representative shall have received from Ernst & Young LLP letters dated, respectively, as of the date of this Agreement, the Closing Time and each Date of DeliveryTime, as the case may be, addressed to the Representative, and in form and substance reasonably satisfactory to the Representative, relating to the financial statements, including any pro forma financial statements, of the Company and the Subsidiaries, and such other matters customarily covered by comfort letters issued in connection with registered public offerings. In the event that the letters referred to above set forth any changes in indebtedness, decreases in total assets or retained earnings or increases in borrowings, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with the purchase and delivery of the Shares as contemplated by the Registration Statement.
(hb) On the date of this Agreement and at the Closing Time and at each Option Closing Time (if applicable), the Representative shall have received from PricewaterhouseCoopers GmbH Wirtschaftsprüfungsgesellschaft a comfort letter addressed to the Representative and dated the respective dates of delivery thereof and in form and substance reasonably satisfactory to the Representative.
(c) The Representative shall have received at the Closing Time and on at each Date Option Closing Time (if applicable) an opinion and negative assurance letter of Delivery the favorable opinion of ▇▇▇▇▇▇ O’Melveny & ▇▇▇M▇▇▇▇ LLP, addressed to the Representative and dated the Closing Time or such Date of Deliverythe applicable Option Closing Time, addressed to as the Representative case may be, and in form and substance reasonably satisfactory to the Representative.
(id) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act at or before 5:30 p.m., New York City time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act).
(e) Any Rule 462(b) Registration Statement required to be filed prior to the sale of the Shares under the Securities Act shall have been filed on the date hereof and shall have become automatically effective upon such filing.
(f) No amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus any document in the Disclosure Package shall have been filed to which the Underwriters shall have reasonably objected in writing; provided that the foregoing shall not apply to any document filed with the Commission which is incorporated by reference into the Registration Statement, Prospectus or any document in the Disclosure Package.
(jg) Prior to the Closing Time and each Date of Delivery Option Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement or S-4 or any order preventing or suspending the use of any Preliminary the Prospectus or Prospectus has any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatenedor, to the Company’s knowledge, threatened by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, shall have has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with; and (iii) none of the Registration Statement, the Prospectus nor the S-4 Statement shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company shall not have become the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(lh) Between the time of execution of this Agreement and the Closing Time or the relevant Date of Delivery Option Closing Time, (i) there shall not have been occurred or shall exist any Material Adverse Change material event or material condition that is unfavorable to the Company and not described in the Prospectus and Disclosure Package; and (ii) no transaction which is material and unfavorable to the Company shall have been entered into by the Company or any of the Subsidiaries, in the case of each caseof clauses (i) through (ii) above, which in the Representative’s sole judgment, makes it impracticable or inadvisable to proceed with the public offering of the Shares as contemplated by the Registration Statement.
(mi) The Shares Company shall have been approved for listing in submitted to Nasdaq a Notification of Listing of Additional Shares with respect to the NYSEShares and Nasdaq shall not have objected thereto.
(nj) The NASD FINRA shall not have raised any no objection with respect to the fairness and reasonableness of the underwriting terms and arrangementsor other arrangements of the transactions contemplated hereby.
(ok) The On or prior to the date hereof, the Representative shall have received lock-up agreements from each officer, director, and 1% or greater stockholder of the Company and Aames Financial I, in the form of persons listed on Exhibit A attached B hereto, and such letter agreements shall be in full force and effect; provided, however, that the letter agreement with SFP may permit SFP to exercise its demand registration rights under the Registration Rights and Governance Agreement (as in effect on the date hereof) and include Shares owned by SFP in a registration statement filed by the Company under the Securities Act so long as such registration statement complies with the restrictions thereon set forth in Section 4(q)(E) of this Agreement.
(pl) The Company and each Transaction Party shallshall furnish to the Underwriters, at the Closing Time and on at each Date of DeliveryOption Closing Time (if applicable), deliver to the Underwriters a certificate of its Chairman of the Board, Chief Executive Officer, President, Chief Operating Officer or Vice President and Chief Accounting Officer or its Chief Financial Officer, General Partner dated the Closing Time or Managing Member, as applicablethe applicable Option Closing Time, to the effect thatthat to their knowledge:
(i) the representations and warranties of the Company and the Transaction Parties in this Agreement are true and correct, as if made correct on and as of the Closing Date with the same effect as if made on such date, except for those representations and warranties that speak solely as of a specific date hereofand were true and correct as of such date, and the Company and each Aames Transaction Party has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the date hereofClosing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or notice by the S-4, and no order directed at any document incorporated by reference therein (“Incorporated Document”) Commission objecting to its use has been issued and no proceedings for that purpose have been instituted or are pending or threatened under or, to the Securities Act;Company’s knowledge, threatened; and
(iii) when confirming to the Registration Statement and S-4 became effective and at all times subsequent thereto up effect set forth in paragraph (h) above.
(m) The Company shall furnish to the Underwriters, as of the date hereof, at the Registration Statement Closing Time and at each Option Closing Time (if applicable), a certificate of its Chief Executive Officer and Chief Financial Officer, dated the Closing Time or the applicable Option Closing Time, with respect to certain financial data contained in the Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and the S-4 and any amendments or supplements to any of them, contained all material information required to be included therein by the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed substance reasonably satisfactory to the requirements of the Securities Act or the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be; the Registration Statement and the Prospectus, the S-4, and any amendments or supplements to any of them, did not and do not include any untrue statement of a material fact or 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, since the effective date of the Registration Statement or S-4, as applicable, there has occurred no event required to be set forth in an amendment or supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is given in the Registration Statement, S-4 and Prospectus, there has not been (a) any Material Adverse Change, (b) any transaction that is material to the Company and the Subsidiaries considered as one enterprise, except transactions entered into in the ordinary course of business, (c) any obligation, direct or contingent, that is material to the Company and the Subsidiaries considered as one enterprise, incurred by the Company or the Subsidiaries, except obligations incurred in the ordinary course of business, (d) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Company and the Subsidiaries considered as one enterprise, (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, or (f) any loss or damage (whether or not insured) to the property of the Company or any subsidiary which has been sustained or will have been sustained which, individually or in the aggregate, has a Material Adverse Effect. provided, that the certificate delivered by the applicable officers of SFP may omit the matters set forth in subclauses (ii) and (iv) above, may limit certification of the matters set forth in subclause (i) above to the representations, warranties and agreements of SFP in this Agreement and may limit certification and may limit certification of the matters set forth in subclause (iii) above to information, facts and events relating to SFPRepresentative.
(qn) The Company and each Transaction Party, as applicable, shall have furnished to the Underwriters and counsel for the Underwriters such other documents information, documents, opinions and certificates as to the accuracy and completeness of any statement in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, the representations, warranties and statements of the Company contained herein, and the performance by the Company and the Transaction Parties of their respective its covenants contained herein and thereinherein, and the fulfillment of any conditions contained herein or thereinherein, as of the Closing Time or any Date of DeliveryOption Closing Time, as the Underwriters or their counsel may reasonably request.
(r) (A) The Merger Agreement effecting , and all proceedings taken by the First Merger Company in connection with the issuance and the Second Merger shall have been duly authorized by all necessary corporate action on the part sale of the Company, each Subsidiary Shares as contemplated herein and each Transaction Party, as applicable; (B) as of in connection with the Closing Time, the First Merger shall have closed, and there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, result in the unwinding of either the First Merger or the Second Merger or a determination that either the First Merger or Second Merger is null and void; and (C) as of the Closing Time, there shall be no pending or threatened action, suit or proceeding that could, in the reasonable discretion of the Representative, prevent the consummation of the other transactions contemplated by this Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice from the Representative to the Company at any time on or otherwise adversely affect prior to the ability Closing Time and, with respect to the Option Shares, at any time on or prior to the applicable Option Closing Time, which termination shall be without liability on the part of any party hereto to fulfill its obligations under this Agreementany other party, except that Sections 5, 7, and 9 shall at all times be effective and shall survive such termination.
(s) All outstanding options, warrants or other securities exercisable or exchangeable for or convertible into shares of capital stock of Aames Financial I shall have been terminated or shall otherwise cease to be outstanding.
(t) None of SFP or any of its affiliates, shall have exercised and perfected and not otherwise effectively withdrawn or otherwise lost appraisal rights under and in accordance with Section 262 of the Delaware General Corporation Law.
(u) SFP and each of its affiliates shall have, at any meeting (or any adjournment or postponement thereof) of Aames Financial I’s shareholders, however called, or in connection with any written consent of Aames Financial I’s shareholders, voted or caused to be voted all shares of Aames Financial I capital stock beneficially owned by them (A) in favor of the approval of the Mergers and (B) against any action, proposal (including any Superior Proposal, as such term is defined in the Merger Agreement), transaction or agreement that would have the effect of preventing or delaying the closing of the Second Merger, the unwinding of either of the Mergers or the consummation of the transactions contemplated by this Agreement.
(v) A. ▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Executive Officer, shall have entered into an employment agreement with the Company for a minimum period of three years following the Closing Time and pursuant to such other terms as are determined by the Company and reasonably acceptable to the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Lilium N.V.)