Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto. (c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto. (d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that to the best of their knowledge: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative. (g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.
Appears in 3 contracts
Sources: Equity Underwriting Agreement (Patriot Coal CORP), Equity Underwriting Agreement (Patriot Coal CORP), Equity Underwriting Agreement (Patriot Coal CORP)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & M▇▇▇▇▇▇▇▇ Will & E▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, Representative in substantially the form of Annex B attached as Exhibit A hereto.
(c) The Company Representative shall have requested and caused received from Akin Gump S▇▇▇▇▇▇ ▇. H▇▇▇▇ & F▇▇▇ LLP, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) At The Company shall have requested and caused R▇▇▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period August 2, 2013 (inception) to August 6, 2013, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and
(iii) statements as to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise)condition, earnings, business or properties of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) 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.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider Letters.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered a letter from each Participant, substantially in the form of Exhibit C hereto.
(m) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Akin Gump S▇▇▇▇▇▇ H▇▇▇▇ & F▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at O▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Levy Acquisition Corp), Underwriting Agreement (Levy Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇Group, in-house Cayman Islands counsel for the Company, to furnish have furnished to the Representative his opinion, its opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex C heretoRepresentative.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.. Credit Suisse Securities (USA) LLC [●], 2021
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have requested and caused Withum to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from August 31, 2020 (date of inception) through September 2, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical Credit Suisse Securities (USA) LLC [●], 2021 information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) 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.
(j) The Securities shall be duly listed subject to notice of issuance on The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. Credit Suisse Securities (USA) LLC [●], 2021
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (TZP Strategies Acquisition Corp.), Underwriting Agreement (TZP Strategies Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & Ellenoff G▇▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as White & Case LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Effect, except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused M▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that it has performed an audit of the financial statements of the Company for the period from July 24, 2020 (inception) through August 17, 2020, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change in, or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Support Agreement.
(k) At least one (1) Business Day prior to the Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of White & Case LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at 1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: J▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Seaport Global Acquisition Corp), Underwriting Agreement (Seaport Global Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇D▇▇▇▇ ▇▇▇▇ & ▇W▇▇▇▇▇▇▇, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his their opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C Exhibit B hereto.
(dc) The Representative shall have received from the firm listed in the underwriting agreement as B▇▇▇▇▇▇ M▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement Agreement, and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect material adverse effect on the condition (financial or otherwise)condition, prospects, earnings, business or properties of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(fe) At The Company shall have requested and caused Ernst & Young to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are registered independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have not, during the periods covered by the financial statements included in the Registration Statement, Statutory Prospectus and Prospectus, provided to the Company any non-audit services, as such term is used in Section 10(A)(g) of the Exchange Act, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company, if any; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings, if any, of the stockholders, directors and audit, governance and nominating committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to [·], 2007, nothing came to their attention which caused them to believe that, with respect to the period subsequent to [·], 2007, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the [·], 2007 balance sheet included in the Registration Statement, the Statutory Prospectus and the Prospectus, or for the period from [·], 2007 to such specified date there were any increases, as compared with [·], 2007 in net loss of the Company, except as disclosed in the Registration Statement as occurring or may occur, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with supporting documentation of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) The Securities shall be duly listed, subject to notice of issuance, on the American Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(i) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Purchase Agreement, the Services Agreement, and each of the Insider Letters.
(j) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit C hereto from each officer and director of the Company and the Founder addressed to the Representative.
(k) The entire $4,000,000 of proceeds from the sale of the Initial Founder’s Warrants shall have been deposited in the Trust Account in accordance with the terms of the Securities Purchase Agreement. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of B▇▇▇▇▇▇ M▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at 3▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (GSC Acquisition Co), Underwriting Agreement (GSC Acquisition Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit A hereto.
(c) The Representative shall have received from Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and the Bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) At The Company shall have requested and caused ▇▇▇▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period October 24, 2013 (inception) to November 20, 2013, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and
(iii) statements as to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise)condition, earnings, business or properties of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) 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.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider Letters.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered a letter from each Participant, substantially in the form of Exhibit C hereto.
(m) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Boulevard Acquisition Corp.), Underwriting Agreement (Boulevard Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date and any the applicable settlement date pursuant to Section 3 hereofdate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its the use of the Registration Statement, the Preliminary Prospectus or the Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Underwriters shall have requested received on the Closing Date and caused ▇any settlement date an opinion of ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, outside counsel for the Company and the Operating Partnership, dated such date, with respect to the matters identified in Exhibit A. The opinion of ▇▇▇, counsel for the Company, to furnish ▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP described in Exhibit A shall be rendered to the Representative its Underwriters at the request of the Company and shall so state therein. In giving the opinion and 10b-5 statement, dated the Closing Date and addressed with respect to the Representativematters identified in Exhibit A, ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP may rely, as to all matters governed by Maryland law, upon the opinion of ▇▇▇▇ ▇▇▇▇▇ LLP referred to in substantially the form of Annex B heretoSection 6(c) below.
(c) The Company Underwriters shall have requested received on the Closing Date and caused any settlement date an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel to the Company, dated such date, with respect to the matters identified in Exhibit B hereto. The opinion of ▇▇▇▇ ▇▇▇▇▇ LLP described in Exhibit B shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date and any settlement date an opinion of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇, in-house P.C., outside counsel for the CompanyManager, to furnish dated such date, with respect to the Representative his opinionmatters identified in Exhibit C. The opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, dated P.C. described in Exhibit C shall be rendered to the Underwriters at the request of the Manager and shall so state therein.
(e) The Underwriters shall have received on the Closing Date and addressed to the Representativeany settlement date an opinion of Sidley Austin LLP, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, dated such date, in the form and substance reasonably satisfactory to the Underwriters. In giving such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents may rely, as they request for to all matters governed by Maryland law, upon the purpose opinion of enabling them ▇▇▇▇ ▇▇▇▇▇ LLP referred to pass upon such mattersin Section 6(c) above.
(ef) The Company shall have furnished to the Representative Representatives a certificate of the CompanyCompany on the Closing Date and any settlement date, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Datesuch date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its the use of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Company Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(fg) At The Manager shall have furnished to the Representatives on the Closing Date and any settlement date a certificate of the Chief Executive Officer and Chief Financial Officer of the Manager, dated such date, to the effect that the signers of such certificate have reviewed the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Manager in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Manager has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; and
(ii) since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, there has been no Manager Material Adverse Effect.
(h) The Company shall have requested and used its commercially reasonable efforts to have caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and each settlement date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date each such date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to financial statements and certain financial information of the Company, contained in the Registration Statement, the Disclosure Package and the Prospectus.
(gi) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto)Prospectus, there shall not have been (iA) any adverse change or decrease specified in the letter or letters referred to in paragraph (fh) of this Section 6 or (iiB) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (iA) or (iiB) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ij) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(k) The Securities shall have been approved for listing on the NYSE, subject to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit D-1 hereto from each officer and director of the Company listed in Exhibit D-2 hereto and addressed to the Representatives.
(m) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and the arrangements relating to the offering of the Securities. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Sidley Austin LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the each Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Altisource Residential Corp), Underwriting Agreement (Altisource Residential Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Units and the Option SecuritiesUnits, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇P▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇M▇▇▇▇▇ ▇. ▇▇▇▇and Calder, in-house Cayman Islands counsel for the Company, to furnish have furnished to the Representative his opinion, its opinions dated the Closing Date and addressed to the Representative, in substantially a form satisfactory to the form of Annex C heretoRepresentative.
(d) The Representative shall have received from the firm listed in the underwriting agreement as Ropes & G▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have furnished to the Representative a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused M▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company as of December 18, 2020 and for the period from November 24, 2020 (date of inception) through December 18, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(j) 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.
(k) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(l) On or prior to the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Warrants Purchase Agreement, Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(m) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile electronic mail confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & G▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at 1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: P▇▇▇ ▇. ▇▇▇▇▇ and C▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Centricus Acquisition Corp.), Underwriting Agreement (Centricus Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & Ellenoff ▇▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Effect, except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that it has performed (i) an audit of the financial statements of the Company for the period from August 10, 2020 (inception) through August 21, 2020 and (ii) a review of the financial statements of the Company for the period from August 10, 2020 through [●], 2020, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change in, or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreements, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Support Agreement.
(k) At least one (1) Business Day prior to the Effective Date, each of the Sponsor and ▇. ▇▇▇▇▇ Principal Investments LLC shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Spartacus Acquisition Corp), Underwriting Agreement (Spartacus Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in a form reasonably acceptable to the Representative.
(c) The Representative shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the its Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the Representative.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(k) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Company shall have caused proceeds from the sale of the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Class Acceleration Corp.), Underwriting Agreement (Class Acceleration Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have requested received from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel for the Company, such opinion, dated the Closing Date and caused addressed to the Representatives, to the effect set forth on Exhibit B hereto and of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Morandi to the effect set forth on Exhibit C hereto.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer Chairman of the Board or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect material adverse effect on the condition (financial or otherwiseother), prospectsbusiness, earnings, business properties or properties results of operation of the Company and its subsidiariesthe Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fe) At The Representatives shall have received (i) from PricewaterhouseCoopers LLP, at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to one or more of the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative lettersRepresentatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) (PCAOB) substantially in the form of Exhibit D hereto and (ii) from BDO ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered accounting firm with respect to IXEurope within the meaning of the Act and the applicable rules and regulations adopted by the Commission and the PCAOB substantially in the form of Exhibit E hereto.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ih) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each Section 16 officer and director of the Company addressed to the Representatives.
(i) Subsequent to the execution and delivery of this Agreement and concurrently with or prior to the Closing Date, the Concurrent Debt Offering shall have been completed. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Equinix Inc), Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused L▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as Weil, Gotshal & M▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(fe) At The Company shall have requested and caused G▇▇▇▇ ▇▇▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from October 22, 2018 (date of inception) through November 6, 2018, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Weil, Gotshal & M▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at 7▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: A▇▇▇ ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (RMG Acquisition Corp.), Underwriting Agreement (RMG Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to each of the Representative its Representatives their opinion and 10b-5 statementnegative assurance letter, dated the Closing Date and addressed to each of the RepresentativeRepresentatives, in substantially form and substance reasonably satisfactory to the form of Annex B heretoRepresentatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, in-house special counsel for the CompanyCompany with respect to certain intellectual property matters, to furnish have furnished to each of the Representative his Representatives their opinion, dated the Closing Date and addressed to each of the RepresentativeRepresentatives, in substantially form and substance reasonably satisfactory to the form of Annex C heretoRepresentatives.
(d) The Representative Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel for the Company with respect to certain regulatory matters, to have furnished to each of the Representatives their opinion, dated the Closing Date and addressed to each of the Representatives, in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fg) At The Company shall have requested and caused each of Ernst & Young LLP and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Inc. to have furnished to each of the Representatives, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries the Subsidiary taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to each of the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(j) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of the Addendum hereto from each officer and director of the Company and each holder of the Company’s equity securities addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of of, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Singulex Inc), Underwriting Agreement (Singulex Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Effect, except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that it has performed an audit of the financial statements of the Company for the period from February 9, 2021 (inception) through March 25, 2021, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change in, or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on Nasdaq, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreements, the Insider Letter and the Registration Rights Agreement.
(k) At least one (1) Business Day prior to the Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (AltEnergy Acquisition Corp), Underwriting Agreement (AltEnergy Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ L.L.P., counsel for the Company, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statementopinion, dated the Closing Date and addressed to the RepresentativeDate, substantially in substantially the form of Annex B hereto.attached hereto as Exhibit B.
(c) The Company shall have requested and caused ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇. ▇▇▇▇▇▇▇, in-house P.C., regulatory counsel for the Company, to furnish have furnished to the Representative his Representatives its opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, substantially in substantially the form of Annex C hereto.attached hereto as Exhibit C.
(d) The Representative Company shall have requested and caused ▇▇▇▇▇▇ Highland PLLC, intellectual property counsel for the Company, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit D-1.
(e) The Company shall have requested and caused ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A., intellectual property counsel for the Company, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit D-2.
(f) The Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(eg) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the President and Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Effect.
(fh) At the Execution Time and at the Closing Date, the The Company shall have requested and caused Ernst & Young LLP to furnish have furnished to the Representative Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative.Representatives, substantially in the form as set forth in Exhibit E.
(gi) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fh) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hj) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes in Section 3(a)(62) of Rule 436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(il) Prior The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Closing DateRepresentatives.
(m) At the Execution Time, the Company shall have furnished to the Representative such further informationRepresentatives a letter substantially in the form of Exhibit F or Exhibit G hereto, certificates as applicable (a “Lock-Up Agreement”) from each officer and documents director of the Company and specified stockholders of the Company, as listed on Exhibits F and G, addressed to the Representative may reasonably requestRepresentatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇ Procter LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Reata Pharmaceuticals Inc), Underwriting Agreement (Reata Pharmaceuticals Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers contained herein as of the Execution Applicable Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company Partnership made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused Fried, Frank, Harris, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the CompanyPartnership, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex C Exhibit A hereto.
(c) The Partnership shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇, A Professional Corporation, counsel for the Partnership, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in substantially the form of Exhibit B hereto.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as Shearman & Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company Partnership shall have furnished to the Representative Representatives a certificate of the CompanyPartnership, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer Chairman of the CompanyBoard or the President and the principal financial or accounting officer of the general partner of the Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure PackageFinal Prospectus, the Final Prospectus Disclosure Package and any supplements or amendments thereto, thereto and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company Issuers in Section 1 of this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has Issuers have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the CompanyPartnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse Effect on Effect, except as set forth in or contemplated in the condition Disclosure Package and the Final Prospectus.
(financial f) The Partnership shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Applicable Time and at the Closing Date, “comfort letters” (which may refer to letters previously delivered to one or otherwisemore of the Representatives), prospectsdated respectively as of the Applicable Time and as of the Closing Date, in form and substance satisfactory to the Representatives and PricewaterhouseCoopers LLP, with respect to the certain unaudited financial statements and financial information contained in the Registration Statement, the Preliminary Prospectus used most recently prior to the Applicable Time and the Final Prospectus.
(g) Subsequent to the Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment thereto), there shall not have been (i) any adverse change or decrease specified in the letters referred to in paragraph (f) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the business, properties, earnings, business results of operations or properties financial condition of the Company Partnership and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the any series of Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(h) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the rating of any of the CompanyPartnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act)) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company Partnership shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling, LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (ONEOK Partners LP), Underwriting Agreement (ONEOK Partners LP)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Ledgewood, PC, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative, in a form reasonably acceptable to the Representative.
(c) The Representative shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Effect.
(fe) At The Company shall have requested and caused Withum to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from January 22, 2021 (date of inception) through January 25, 2021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on NASDAQ, satisfactory evidence of which shall have been provided to the Representative.
(j) On the date hereof, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Services Agreement, the Placement Unit Subscription Agreement, the Insider Letter and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the Private Placement Portion to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Belong Acquisition Corp.), Underwriting Agreement (Belong Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions (including negative assurance statements) dated the Closing Date and addressed to the Representative in form and substance acceptable to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇and Calder, in-house Cayman Islands counsel for the Company, to furnish have furnished to the Representative his opinion, its opinions dated the Closing Date and addressed to the Representative in form and substance acceptable to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the or Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have furnished to the Representative a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from December 18, 2019 (inception) through December 31, 2020, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f(g) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution Time, there FINRA shall not have been raised any decrease in objection with respect to the rating of any fairness or reasonableness of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) underwriting or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction other arrangements of the possible changetransactions contemplated hereby.
(ij) Prior The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement and the Insider Letters.
(l) At least one (1) Business Day prior to the Closing Date, the Company Sponsor shall have furnished caused certain proceeds from the sale of the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative such further informationpursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, certificates and documents as the Representative may reasonably requestno proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Sustainable Opportunities Acquisition Corp.), Underwriting Agreement (Sustainable Opportunities Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & G▇▇▇▇▇▇▇▇ T▇▇▇▇▇▇, LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as R▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Effect, except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused M▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that it has performed an audit of the financial statements of the Company for the period from February 26, 2021 (inception) through March 18, 2021, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change in, or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider Letter and the Registration Rights Agreement.
(k) At least one (1) Business Day prior to the Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of R▇▇▇ ▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at 599 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇ttention: A▇▇ ▇▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Galata Acquisition Corp.), Underwriting Agreement (Galata Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇Lovells US LLP, counsel for the Company, to furnish have furnished to the Representative its Representatives their opinion and 10b-5 statementletter, dated the Closing Date and addressed to the RepresentativeRepresentatives, substantially in substantially the form of Annex B heretoagreed by such counsel and the Underwriters.
(ci) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. Hall & ▇▇▇▇▇▇▇ LLP, in-house intellectual property counsel for the Company, to furnish have furnished to the Representative his Representatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, substantially in substantially the form of Annex C heretoagreed by such counsel and the Underwriters.
(ii) The Company shall have requested and caused Fish & ▇▇▇▇▇▇▇▇▇▇ P.C., intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form agreed by such counsel and the Underwriters.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer principal executive officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the The Company shall have requested and caused Ernst & Young LLP to furnish have furnished to the Representative Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative.Representatives, substantially in the form as set forth in Exhibit C.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries the Subsidiary taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further customary information, certificates and documents as the Representative Representatives may reasonably request. .
(i) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each holder of capital stock of the Company prior to the date hereof (other than employees of the Company holding, in aggregate, less than 1% of the outstanding capital stock of the Company) addressed to the Representatives If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇., Menlo Park, CA 94025, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (TESARO, Inc.), Underwriting Agreement (TESARO, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & Ellenoff ▇▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Effect, except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that it has performed (i) an audit of the financial statements of the Company for the period from May 9, 2019 (inception) through June 30, 2019 and (ii) a review of the financial statements of the Company for the period from May 9, 2019 through September 30, 2019, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change in, or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Support Agreement.
(k) At least one (1) Business Day prior to the Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Software Acquisition Group Inc.), Underwriting Agreement (Software Acquisition Group Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Ropes & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representative its opinion and negative assurance letter dated the Closing Date or settlement date (as applicable) and addressed to the Representative, in a form reasonably acceptable to the Representative.
(c) The Representative shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, and negative assurance letter dated the Closing Date or settlement date (as applicable) and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer another executive officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the such Closing Date or settlement date (as applicable) with the same effect as if made on the Closing DateDate or settlement date (as applicable), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the such Closing DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued issued, and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representative a certificate signed by the signed by the Chief Executive Officer and another executive officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) At The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing DateDate or settlement date (as applicable), the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative comfort letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the financial statements of the Company included in the Registration Statement, Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) 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.
(j) The Securities shall be duly listed, subject to notice of issuance, on the NYSE, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Closing Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, the Insider Letter and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Securities in any jurisdiction designated by the Representative pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representative, along with such additional supporting documentation as the Representative has requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at in electronic format to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the office of the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Sources: Underwriting Agreement (KKR Acquisition Holdings I Corp.), Underwriting Agreement (KKR Acquisition Holdings I Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Units and the Option SecuritiesUnits, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & Ellenoff ▇▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇and Calder, in-house Cayman Islands counsel for the Company, to furnish have furnished to the Representative his opinion, its opinions dated the Closing Date and addressed to the Representative, in substantially a form satisfactory to the form of Annex C heretoRepresentative.
(d) The Representative shall have received from the firm listed in the underwriting agreement as Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have furnished to the Representative a certificate signed by the Secretary or the Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused Withum to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company as of October 5, 2020 and for the period from September 24, 2020 (date of inception) through October 5, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(j) 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.
(k) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(l) On or prior to the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Placement Unit Subscription Agreement, Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(m) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Units to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as net forth on the cover of the Prospectus.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & ▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Sports Ventures Acquisition Corp.), Underwriting Agreement (Sports Ventures Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have requested received from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel for the Company, such opinion, dated the Closing Date and caused addressed to the Representatives, to the effect set forth on Exhibit B hereto, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Morandi to the effect set forth on Exhibit C hereto and of Shearman & Sterling LLP to the effect set forth on Exhibit E hereto.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer Chairman of the Board or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect material adverse effect on the condition (financial or otherwiseother), prospectsbusiness, earnings, business properties or properties results of operation of the Company and its subsidiariesthe Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fe) At The Representatives shall have received from PricewaterhouseCoopers LLP, at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to one or more of the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative lettersRepresentatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) (PCAOB) substantially in the form of Exhibit D hereto.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ih) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each Section 16 officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Equinix Inc), Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ , Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date or the settlement date, as the case may be, and addressed to the Representative, in substantially a form reasonably satisfactory to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇and Calder, in-house Cayman Islands counsel for the Company, to furnish have furnished to the Representative his opinion, its opinions dated the Closing Date or the settlement date, as the case may be, and addressed to the Representative, in substantially a form reasonably satisfactory to the form of Annex C heretoRepresentative.
(d) The Representative shall have received from the firm listed in the underwriting agreement as Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or the settlement date, as the case may be, and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate or the settlement date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments thereto, supplement thereto and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing DateDate or the settlement date, as the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative case may be, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and containing 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. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing DateDate or the settlement date, as the case may be, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) 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.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Public Warrant Agreement, the Private Warrant Agreement, the Founder’s Subscription Agreement, the Sponsor Co-Investor’s Subscription Agreement, the Sponsor Warrant Purchase Agreement, the Sponsor Co-Investor Warrant Purchase Agreement, the Insider Letter, the Registration Rights Agreement and the Services Agreement.
(l) At least one Business Day prior to the Closing Date or the settlement date, as the case may be, the Sponsor shall have caused the purchase price for the Sponsor Private Placement Warrants and the Sponsor Co-Investor Private Placement Warrants to be wired to the Company and the Company shall direct the trustee to deposit such funds into the Trust Account and to hold such funds in the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or settlement date shall equal the product of the number of Units sold in the Offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or the settlement date, as the case may be, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Andretti Acquisition Corp.), Underwriting Agreement (Andretti Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & Ellenoff ▇▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer Officers and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Effect, except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that it has performed an audit of the financial statements of the Company for the period from January 1, 2021 (commencement of operations) through February 24, 2021 and a review of the financial statements of the Company for the quarter ended March 31, 2021, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change in, or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on the NYSE, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Support Agreement.
(k) At least one (1) Business Day prior to the Effective Date, the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Apeiron Capital Investment Corp.), Underwriting Agreement (Apeiron Capital Investment Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇Coie LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his their opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.attached hereto as Exhibit C.
(dc) The Representative shall have received from the firm listed in the underwriting agreement as Fenwick & West LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer principal executive officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fe) At The principal financial officer of the Company shall have furnished the Representative, at the Execution Time and at the Closing Date, certificates, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, containing statements and information with respect to certain information contained in the Disclosure Package and the Prospectus.
(f) The Company shall have requested and caused Ernst & Young LLP to furnish have furnished to the Representative Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and all holders of Company equity securities addressed to the Representative. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Fenwick & West LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Zillow Inc), Underwriting Agreement (Zillow Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & Ellenoff ▇▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fe) At The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative.
(g) Subsequent , confirming that it is a registered public accounting firm that is independent with respect to the Execution Time or, if earlier, Company within the dates as meaning of which information is given in the Disclosure Package (exclusive of any amendment thereof) Act and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that it has performed (i) any adverse change or decrease specified in an audit of the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties statements of the Company and its subsidiaries taken as a wholefor the period from November 17, whether or not arising from transactions in 2020 (inception) through November 30, 2020, provided that the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there cutoff date shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) be more than two Business Days prior to such Execution Time or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further informationas applicable, certificates and documents as the Representative may reasonably request. If any of the conditions specified stating in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.effect that:
Appears in 2 contracts
Sources: Underwriting Agreement (African Gold Acquisition Corp), Underwriting Agreement (African Gold Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & Ellenoff ▇▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative in form and substance satisfactory to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇Ogier, in-house British Virgin Islands counsel for the Company, to furnish have furnished to the Representative his opinion, its opinions dated the Closing Date and addressed to the Representative in form and substance satisfactory to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, Date to the effect that the signers of such certificate have carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have furnished to the Representatives a certificate signed by the Chief Financial Officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company, and such other matters as the Representatives shall reasonably request. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period January 14, 2015 (inception) to January 20, 2015, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and
(iii) statements as to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise)condition, earnings, business or properties of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(j) 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.
(k) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(l) On the Closing Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Founder’s Purchase Agreement, the Subscription Agreement and each of the Insider Letters.
(m) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $1,250,000 of the purchase price for the Private Placement Shares to be funded to the Company and the remainder to be funded to the Trust Account.
(n) No order preventing or suspending the sale of the Securities in any jurisdiction designated by the Representative pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Atlantic Alliance Partnership Corp.), Underwriting Agreement (Atlantic Alliance Partnership Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel for the Company, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statement, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentatives.
(c) The Company shall have requested and caused Ogier, British Virgin Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ▇. & ▇▇▇▇▇ LLP, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the its Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the RepresentativeRepresentatives.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) 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.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Forward Purchase Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Company shall have caused proceeds from the sale of the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Kismet Acquisition One Corp), Underwriting Agreement (Kismet Acquisition One Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, thereto have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused H▇▇▇▇ & H▇▇▇▇▇▇ L.L.P., U.S. counsel for the Company, and C▇▇▇▇▇▇ ▇▇▇▇▇, Canadian counsel for the Company, to have furnished to the Representatives their opinions substantially in the forms set forth in Exhibits D-1 and D-2 hereto, respectively, dated the Closing Date and any settlement date and addressed to the Representatives.
(c) The Representatives shall have received from C▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇ & H▇▇▇▇▇▇▇ ▇. ▇▇▇▇LLP, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer Chairman of the Board or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date and any settlement date with the same effect as if made on the Closing Date, Date and any settlement date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing DateDate and any settlement date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).Effect,
(fe) At The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, letters (which may refer to letters previously delivered to one or more of the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative lettersRepresentatives), dated respectively as of the Execution Time and as of the Closing Date and any settlement date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that its an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating to the effect that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the six-month period ended December 31, 2006, and as at December 31, 2006; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the shareholders, directors and audit and corporate governance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to June 30, 2006, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus;
(2) with respect to the period subsequent to December 31, 2006, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its subsidiaries or capital stock of the Company as compared with the amounts shown on the December 31, 2006 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included or incorporated by reference in the Registration Statement, the Preliminary Prospectus, the Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), is not in conformity with the applicable disclosure requirements of Regulation S-K; and they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus, the Final Prospectus and in Exhibit 12.1 of the Registration Statement, including the information set forth under the captions “Prospectus Supplement Summary,” “Risk Factors,” “Recent Developments,” “Dividend History” and “Capitalization” in the Preliminary Prospectus and the Final Prospectus, the information in Items 1, 1A, 2, 5, 6, 7, 7A and 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, the information in Items 1A, 2 and 3 of the Company’s Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and the information in Items 1.01, 8.01 and 9.01 of the information in the Company’s Current Reports on Form 8-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)Material Adverse Effect, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing DateDate and any settlement date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(h) The Securities shall have been approved for quotation on the NASDAQ Global Select Market and the Toronto Stock Exchange, subject only to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives.
(i) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A to this Agreement from (i) each officer and director of the Company, (ii) IAMGOLD Corporation and (iii) M▇▇▇ ▇▇▇▇▇▇, addressed to the Representatives.
(j) The Underwriters having received duly completed and executed Subscription Agreements from purchasers in the Canadian Jurisdictions by no later than 5:00 p.m. (New York time) on April 9, 2007. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of C▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at O▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Royal Gold Inc), Underwriting Agreement (Royal Gold Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative, in a form reasonably acceptable to the Representative.
(c) The Representative shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Effect.
(fe) At The Company shall have requested and caused KPMG to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from August 25, 2020 (date of inception) through September 2, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on NASDAQ, satisfactory evidence of which shall have been provided to the Representative.
(j) On the date hereof, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the Private Placement Portion to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Yellowstone Acquisition Co), Underwriting Agreement (Yellowstone Acquisition Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused S▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ & L▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as M▇▇▇▇▇▇▇▇ Will & E▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, or threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Effect, except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused M▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that it has performed an audit of the financial statements of the Company for the period from February 18, 2021 (inception) through September 30, 2021, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change in, or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed, subject to notice of issuance, on Nasdaq, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(k) At least one (1) Business Day prior to the Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of M▇▇▇▇▇▇▇▇ Will & E▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at O▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: A▇▇ ▇▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Signal Hill Acquisition Corp.), Underwriting Agreement (Signal Hill Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have requested received from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel for the Company, such opinion, dated the Closing Date and caused addressed to the Representatives, to the effect set forth on Exhibit B hereto, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Morandi to the effect set forth on Exhibit C hereto and of Shearman & Sterling LLP to the effect set forth on Exhibit D hereto.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer Chairman of the Board or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect material adverse effect on the condition (financial or otherwiseother), prospectsbusiness, earnings, business properties or properties results of operation of the Company and its subsidiariesthe Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fe) At The Representatives shall have received (i) from PricewaterhouseCoopers LLP, at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to one or more of the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative lettersRepresentatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are an independent registered accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) (PCAOB) substantially in the form of Exhibit E hereto and (ii) from BDO ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered accounting firm with respect to IXEurope within the meaning of the Act and the applicable rules and regulations adopted by the Commission and the PCAOB substantially in the form of Exhibit F hereto.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ih) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each Section 16 officer and director of the Company addressed to the Representatives.
(j) Subsequent to the execution and delivery of this Agreement and concurrently with or prior to the Closing Date, the Concurrent Stock Offering shall have been completed. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Equinix Inc), Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇and Calder, in-house Cayman Islands counsel for the Company, to furnish have furnished to the Representative his opinion, its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex C heretoRepresentative.
(d) The Representative shall have received from the firm listed in the underwriting agreement as Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the its Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have requested and caused Withum to have furnished to the Representative, at the Execution Time and at the Closing DateDate and any settlement date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) 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.
(j) The Securities shall be duly listed subject to notice of issuance on Nasdaq, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Company shall have caused proceeds from the sale of the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Jaws Juggernaut Acquisition Corp), Underwriting Agreement (Jaws Juggernaut Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇Lovells US LLP, counsel for the Company, to furnish have furnished to the Representative its Representatives their opinion and 10b-5 statementletter, dated the Closing Date and addressed to the RepresentativeRepresentatives, substantially in substantially the form of Annex B heretoagreed by such counsel and the Underwriters.
(ci) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. Hall & ▇▇▇▇▇▇▇ LLP, in-house intellectual property counsel for the Company, to furnish have furnished to the Representative his Representatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, substantially in substantially the form of Annex C heretoagreed by such counsel and the Underwriters.
(ii) The Company shall have requested and caused ▇▇▇▇▇ Lovells US LLP, intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form agreed by such counsel and the Underwriters.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer principal executive officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the The Company shall have requested and caused Ernst & Young LLP to furnish have furnished to the Representative lettersRepresentatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative.Representatives, substantially in the form as set forth in Exhibit B.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further customary information, certificates and documents as the Representative Representatives may reasonably request.
(i) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Select Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A-1 hereto from each officer and director of the Company and each holder of capital stock of the Company listed on Exhibit A-2 hereto prior to the date hereof addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇., Menlo Park, CA 94025, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (TESARO, Inc.), Underwriting Agreement (TESARO, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Cadwalader, ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the co-Chief Executive Officer Officers and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Effect, except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that it has performed an audit of the financial statements of the Company for the period from January 19, 2021 (inception) through September 30, 2021, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change in, or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Support Agreement.
(k) At least one (1) Business Day prior to the Effective Date, the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Roman DBDR Tech Acquisition Corp. III), Underwriting Agreement (Roman DBDR Tech Acquisition Corp. II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof3, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusRegistration Statement, including any Rule 462(b) Registration Statement, has become effective and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any supplement theretoof those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for additional information. A prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to ) without reliance on Rule 433(d424(b)(8) under the Act, or a post-effective amendment providing such information shall have been filed with, and declared effective by, the Commission in accordance with the Commission within the applicable time periods prescribed for such filings by requirements of Rule 433430A; and no stop order suspending notice objecting to the effectiveness use of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A., counsel for the Company, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statement dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Sidley Austin LLP, counsel for the Underwriters, its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representativeany settlement date, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇as applicable, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the a form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed reasonably acceptable to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably requireRepresentatives, and the Company shall have furnished to such counsel such documents as they may request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the its Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date;
(ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date;
(iiiii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiiiv) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate of the Chief Financial Officer of the Company dated the date that this Agreement is executed and delivered by the parties hereto, the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives.
(f) At The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the RepresentativeRepresentatives.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) 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.
(j) The Securities shall be duly listed subject to notice of issuance on Nasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Securities Purchase Agreements, the Warrant Subscription Agreement, the Insider Letters, the Anchor Investment Agreements, and the Registration and Stockholder Rights Agreement. By the Closing Date, the Company shall have delivered to the Representatives an executed copy of the Administrative Services Agreement. With regard to the Insider Letters, if any additional persons shall become executive officers, directors or director nominees of the Company prior to the end of the 180-day restricted period referred to in Section 5(h), the Company shall cause each such person, prior to or contemporaneously with their appointment or election as an executive officer, director and director nominee to execute and deliver to the Representative the Insider Letters.
(l) The Sponsor (at least one (1) Business Day prior to the Effective Date) shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account so that together with the net proceeds for the Firm Securities (including the Deferred Discount), or with respect to the Firm Securities, the net proceeds from the Option Securities (including the Deferred Discount), the Trust Account would equal the product of the number of Units sold and the public offering price per Unit as set forth on the cover of the Prospectus. Notwithstanding the foregoing, in no event will the Company take any action that would result in the Company receiving proceeds from the sale of the Private Placement Warrants in excess of the sum of: (i) the amount required to satisfy the obligation in the immediately preceding sentence; (ii) the amount of the discount from the public offering price represented by the purchase price set forth in Schedule II of this Agreement and (iii) the amount of money to be held by the Company outside of the Trust Account, as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 and, if applicable, the last sentence of Section 3(d), shall be delivered at the office of Sidley Austin LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Crixus BH3 Acquisition Co), Underwriting Agreement (Crixus BH3 Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇Mourant Ozannes, in-house Cayman Islands counsel for the Company, to furnish have furnished to the Representative his opinion, its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex C heretoRepresentative.
(d) The Representative shall have received from the firm listed in the underwriting agreement as Shearman & Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing DateDate and any settlement date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from January 5, 2021 (date of inception) through January 12, 2021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) 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.
(j) The Securities shall be duly listed subject to notice of issuance on The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (L Catterton Asia Acquisition Corp), Underwriting Agreement (L Catterton Asia Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Optional Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & and ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statement, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇and Calder, in-house Cayman Islands counsel for the Company, to furnish have furnished to the Representative his opinion, Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex C heretoRepresentatives.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the its Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement and each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, and each road show used in connection with the Offering, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from December 16, 2020 (inception) through December 31, 2020; provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this Section 7(f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fSection 7(f) of this Section 6 hereof or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) 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.
(j) The Offered Securities shall be duly listed subject to notice of issuance on Nasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Forward Purchase Agreement, the Insider Letter and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 shall be delivered at the office of ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇, unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Lead Edge Growth Opportunities, LTD), Underwriting Agreement (Lead Edge Growth Opportunities, LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives in form and substance acceptable to the Representatives.
(c) The Company shall have requested and caused Walkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer principal financial or accounting officer and (y) the Chief Financial Officer secretary of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period September 14, 2017 (inception) through September 27, 2017, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution Time, there FINRA shall not have been raised any decrease in objection with respect to the rating of any fairness or reasonableness of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) underwriting or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction other arrangements of the possible changetransactions contemplated hereby.
(ij) Prior The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Registration Rights Agreement, the Services Agreement, the Private Placement Warrants Purchase Agreement and the Insider Letters.
(l) At least one (1) Business Day prior to the Closing Date, the Company Sponsor shall have furnished caused the purchase price for the Private Placement Warrants to be deposited into the Representative such further informationTrust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, certificates and documents as the Representative may reasonably requestno proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Regalwood Global Energy Ltd.), Underwriting Agreement (Regalwood Global Energy Ltd.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statement, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇and Calder, in-house Cayman Islands counsel for the Company, to furnish have furnished to the Representative his opinion, Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex C heretoRepresentatives.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the its Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the RepresentativeRepresentatives.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) 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.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Company shall have caused proceeds from the sale of the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Sources: Underwriting Agreement (AEA-Bridges Impact Corp.), Underwriting Agreement (AEA-Bridges Impact Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Cravath, Swaine & ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, counsel for the Company, to furnish have furnished to the Representative its an opinion and 10b-5 statementa letter, each dated the Closing Date and addressed to the Representative, in substantially form and substance reasonably satisfactory to the form of Annex B heretoRepresentative.
(c) The Company Representative shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his received an opinion, dated the Closing Date and addressed to the Representative, of , special Alabama counsel for the Company, in substantially form and substance reasonably satisfactory to the form of Annex C heretoRepresentative.
(d) The Representative shall have received an opinion, dated the Closing Date and addressed to the Representative, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel and Secretary of the Company, in form and substance reasonably satisfactory to the Representative.
(e) The Selling Stockholders (other than the ▇▇▇▇▇▇▇, Inc. Employee Stock Ownership Plan (the “ESOP”) shall have requested and caused ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Selling Stockholders (other than the ESOP), to have furnished to the Representative their opinion dated the Closing Date and addressed to the Representative, in form and substance reasonably satisfactory to the Representative.
(f) The ESOP shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the ESOP, to have furnished to the Representative their opinion dated the Closing Date and addressed to the representative, in form and substance reasonably satisfactory to the Representative.
(g) The Representative shall have received from the firm listed in the underwriting agreement as Shearman & Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(eh) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageProspectus, the Final Prospectus Disclosure Package and any supplements amendment or amendments supplement thereto, as well as each road show used in connection with the offering of the Securities (including any electronic roadshow), and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fi) At On the Execution Time and at the Closing Datedate hereof, the Company Representative shall have requested received from each of (i) Deloitte & Touche LLP, independent registered public accounting firm for the Company, and caused Ernst (ii) ▇▇▇▇▇▇ & Young LLP to furnish ▇▇▇▇▇▇, Inc., independent public accountants for ▇▇▇▇▇▇, a letter dated the date hereof addressed to the Representative lettersUnderwriters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative, containing 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, unaudited and pro forma financial statements and certain financial information contained in the Registration Statement, the Disclosure Package and the Prospectus.
(gj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fj) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hk) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(l) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(im) Prior The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Closing DateRepresentative.
(n) At the Execution Time, the Company shall have furnished to the Representative such further information, certificates a letter in form and documents as substance reasonably satisfactory to the Representative may reasonably requestfrom each officer, director, Selling Stockholder and each other stockholder of the Company listed on Schedule IV hereto addressed to the Representative. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date and any settlement date pursuant to Section 3 hereofor the applicable Settlement Date, as the case may be, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time periods period prescribed for such filings by Rule 433filing and in accordance with Section 5(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Alberta Securities Commission or the Commission;
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to furnish have furnished to the Representative its Representatives their opinion and 10b-5 statementletter, dated the Closing Date or such Settlement Date, as the case may be, and addressed to the RepresentativeRepresentatives, substantially in substantially the form of attached hereto as Annex B hereto.B;
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ LLP, in-house Canadian counsel for the Company, to furnish have furnished to the Representative his Representatives their opinion, dated the Closing Date or such Settlement Date, as the case may be, and addressed to the RepresentativeRepresentatives, with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, substantially in substantially the form of attached hereto as Annex C hereto.C.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing Date or such Settlement Date, as the case may be, and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.;
(e) The Representatives shall have received from Osler, ▇▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Underwriters, such opinion or opinions, dated the Closing Date or such Settlement Date, as the case may be, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters;
(f) The Representatives shall have received from the Vice President & Corporate Secretary of the Company a certificate, dated the Closing Date or such Settlement Date, as the case may be, and addressed to the Representatives, substantially in the form attached hereto as Annex D.
(g) The Representatives shall have received from Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, U.S. regulatory counsel to the Company, dated the Closing Date or such Settlement Date, as the case may be, an opinion substantially in the form attached hereto as Annex E.
(h) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer two of the Companyits senior officers, dated the Closing Date or such Settlement Date, as the case may be, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus and Prospectus, any supplements or amendments theretoto the Final Prospectus, and this Agreement Agreement, and that to the best knowledge of their knowledgesuch signers, after due investigation:
(i) i. the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or such Settlement Date, as the case may be, with the same effect as if made on the Closing Date, Date or such Settlement Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date or such Settlement Date;
(ii) . no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any notice objecting prospectus relating to its use the Securities has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatenedthreatened by the Alberta Securities Commission or the Commission; and
(iii) . since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).;
(fi) At The Representatives shall have received from PricewaterhouseCoopers LLP, the Company’s independent auditor, a letter or letters dated at the Execution Time and at the Closing Date and at each such Settlement Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance reasonably satisfactory to the Representative.Representatives, together with signed or reproduced copies of such letter or letters for each of the other 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 Final Prospectus;
(gj) [Reserved.]
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereofthereto) and the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph paragraphs (fi) and (j) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereofthereto), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).;
(hl) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical Standard & Poors Rating Services, ▇▇▇▇▇’▇ Investor Services or Dominion Bond Rating Service Limited and no such rating organization” (as defined for purposes service shall have publicly announced or otherwise informed the Company that it has under surveillance or review, with possible negative implications, its rating or outlook of Rule 436(g) under the Act) Company or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.Company’s debt securities or preferred stock;
(im) Prior to the Closing Date or such Settlement Date, as the case may be, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably requestrequest and as is customary in offerings of securities similar to the Securities. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or such Settlement Date, as the case may be, by the Representative. Notice Representatives upon notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the Closing DateDate or such Settlement Date (or such other date as provided in this Section 6) or such other place as the Representatives shall so instruct.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company No order suspending the effectiveness of the K-SRS or the K-Prospectus shall be in effect, and no proceeding for such purpose pursuant to the laws of Korea shall be pending before or, to the Company’s knowledge, threatened by the FSC and all requests by the FSC for additional information shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, to furnish been complied with to the Representative its opinion and 10b-5 statement, dated reasonable satisfaction of the Closing Date and addressed to the Representative, in substantially the form of Annex B heretoRepresentatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in-house U.S. counsel for the Company and Shin & ▇▇▇ LLC, Korean counsel for the Company, to furnish have furnished to the Representative his opinionRepresentatives such opinion or opinions and negative assurances letters, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially form and substance reasonably satisfactory to the form of Annex C heretoRepresentatives.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Underwriters, ▇▇▇ & ▇▇▇▇▇, Korean counsel for the Underwriters, and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ ▇▇▇, U.S. counsel for the Depositary, such opinion or opinionsopinions and negative assurances letters, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect in form and substance reasonably satisfactory to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersRepresentatives.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) Officer, the Chief Financial Officer or the Head of Financial Management of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Final Prospectus and the ADR Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date Date, as applicable, with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect on material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) At The Company and the Depositary shall have executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect. The Depositary shall have delivered to the Company certificates reasonably satisfactory to the Underwriters evidencing the deposit with the Depositary or its nominee of the Underlying Shares being so deposited against issuance of ADRs evidencing the ADSs to be delivered by the Company at the Closing Date, and the execution, countersignature (if applicable), issuance and delivery of ADRs evidencing such ADSs pursuant to the Deposit Agreement.
(g) The Company shall have requested and caused KPMG Samjong Accounting Corp. to have furnished to the Representatives, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives; provided, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) Registration Statement and the Final Prospectus (exclusive of any amendment ADR Registration Statement, as amended or supplement thereto)supplemented prior to the Execution Time, and the Prospectus, as amended or supplemented prior to the Execution Time, there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment Prospectus, as amended or supplement thereto)supplemented prior to the Execution Time, the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the RepresentativeRepresentatives, after consultation with the Company to the extent practicable, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)and ADR Registration Statement, as amended or supplemented prior to the Execution Time, the Disclosure Package and the Final Prospectus (exclusive of any amendment Prospectus, as amended or supplement thereto)supplemented prior to the Execution Time.
(hi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ik) Prior The Securities shall have been listed and admitted and authorized for trading on the Nasdaq, and satisfactory evidence of such actions shall have been provided to the Closing DateRepresentatives.
(l) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(m) At the Execution Time, the Company shall have furnished to the Representative Representatives a letter substantially in the form of EXHIBIT A hereto from SK square Co., Ltd. and each officer and director of the Company identified in such further informationEXHIBIT A addressed to the Representatives.
(n) No action shall have been taken and no statute, certificates rule, regulation or order shall have been enacted, adopted or issued by any U.S. federal or state or Korean governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and documents no injunction or order of any U.S. federal or state or Korean court shall have been issued that would, as of the Representative may reasonably requestClosing Date, prevent the issuance or sale of the Securities. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at 33rd Floor, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇ ▇-▇▇▇, ▇▇▇▇-gu, Seoul 04539, Korea, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his their opinion, dated the Closing Date and addressed to the Representative, in substantially form and substance reasonably satisfactory to the form of Annex C heretoRepresentative.
(dc) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer Chairman of the Board or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date with the same effect as if made on the Closing Date, Date or settlement date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing DateDate or settlement date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(fe) At The Company shall have requested and caused BDO to have furnished to the Representative, at the Execution Time and at the Closing DateDate or settlement date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date, in form and substance satisfactory to the Representative.
(f) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and the Closing Date, letters dated respectively as of the Execution Time and Closing Date or settlement date, in form and substance reasonably satisfactory to the Representative and stating the conclusions and findings of such firm with respect to reserve and other operational information and other matters as is customary to underwriters in connection with registered public offerings.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Capital Market, and satisfactory evidence of such actions shall have been provided to the Representative.
(j) At the Execution Time, there the Company shall not have been any decrease furnished to the Representative a letter substantially in the rating form of any Exhibit A hereto from each officer and director of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under Company and major stockholder listed on Schedule IV addressed to the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changeRepresentative.
(ik) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ on the Closing DateDate or settlement date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statementRepresentatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex B specified in Exhibit A hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for furnished to the Representatives a written opinion of the Company, to furnish to the Representative his opinion, ’s Co-General Counsel and Corporate Secretary dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially form and substance reasonably satisfactory to the form of Annex C heretoRepresentatives.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received on and as of the Closing Date an opinion of Winston & ▇▇▇▇▇▇ LLP, special counsel for the Representatives, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chairman of the Board or the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fg) At The Company shall have requested and caused PricewaterhouseCoopers, LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative lettersRepresentatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Disclosure Package and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than two business days prior to the Closing Date.
(gh) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Disclosure Package and the Final Prospectus.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph paragraphs (fg) and (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ik) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(l) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or facsimile or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ Godward Kronish LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as Exhibit B.
(c) The Company shall have requested and caused each of Fish & ▇▇▇▇▇▇▇▇▇▇ P.C., intellectual property counsel for the Company, to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as Exhibit C.
(d) The Company shall have requested and caused each of ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, intellectual property counsel for the Company, to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as Exhibit D.
(e) The Company shall have requested and caused Arent Fox LLP, regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as Exhibit E.
(f) The Selling Stockholders shall have requested and caused [ ], counsel for the Selling Stockholders, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as Exhibit F.
(g) The Representatives shall have received from ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company and each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(eh) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer Chairman of the Board or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fi) At The Company shall have furnished to the Execution Time and at Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the Closing Date, in the form set forth in Exhibit G hereto.
(j) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by such person, if an individual, or signed by the Chairman of the Board or the President and the principal financial or accounting officer of such Selling Stockholder, if an entity, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(k) The Company shall have requested and caused Ernst & Young LLP to furnish have furnished to the Representative Representatives at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, which letter shall cover, without limitation, confirmation that they are independent accountants within the meaning of the Act and the Exchange Act and the various financial disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus.
(gl) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fk) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(im) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(n) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(o) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto addressed to the Representatives from each officer and director of the Company and each stockholder of the Company.
(p) Prior to the Closing Date, all outstanding shares of preferred stock of the Company shall convert into shares of Common Stock in the manner described in the Registration Statement, the Preliminary Prospectus and the Prospectus; prior to Execution Time, the Company has duly effected and completed a one-for-two reverse stock split of the Common Stock in the manner described in the Registration Statement, each Preliminary Prospectus and the Prospectus. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company and each Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP , counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereof, and any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused to be furnished to the Representative legal opinions, dated the Closing Date and addressed to the Representative, from the following parties:
(i) Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, counsel for the Company, in the form attached hereto as Exhibit A.
(ii) J. ▇▇▇▇▇▇ ▇▇▇▇▇, General Counsel for the Company, in the form of Exhibit B.
(c) The Representative shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such an opinion or opinionsand negative assurance letter, each dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer Chairman of the Board or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects (disregarding any qualifications contained herein regarding materiality or Material Adverse Effect) on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on material adverse change, or any development involving a prospective change, in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fe) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representative, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative lettersRepresentative), dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form with the applicable accounting requirements of Regulation S-X;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and the Subsidiaries; a reading of the minutes of the meetings of the stockholders and Board of Directors (and committees thereof) of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and the Subsidiaries as to transactions and events subsequent to December 31, 2006, nothing came to their attention which caused them to believe that:
(A) with respect to the period subsequent to December 31, 2006, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its consolidated subsidiaries or capital stock of the Company or decreases in the shareholders’ equity of the Company or working capital of the Company and its consolidated subsidiaries as compared with the amounts shown on the December 31, 2006 consolidated balance sheet included or incorporated by reference in the Final Prospectus, or for the period from January 1, 2007 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in net income or income before income taxes or in total or per share amounts of net income of the Company and its consolidated subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative; and
(B) the information included in the Preliminary Prospectus and the Final Prospectus under the heading “Selected Consolidated Historical Financial and Other Data” and in Item 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Preliminary Prospectus and the Final Prospectus, is not in conformity with the disclosure requirements of Regulation S-K;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its consolidated subsidiaries) set forth or incorporated by reference in the Final Prospectus, including, without limitation, the information set forth under the captions “Selected Historical Consolidated Financial and Other Data” in the Preliminary Prospectus and the Final Prospectus, the information included or incorporated by reference in Items 1, 2, 6, 7 and 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Final Prospectus and the information included in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included or incorporated by reference in the Company’s annual report on Form 10-K or reports on Form 8-K, incorporated by reference in the Final Prospectus, agrees with the accounting records of the Company and its consolidated subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ih) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) Application shall have been made to have the Securities listed for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representative. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall 7 will be delivered at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP , counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & Ellenoff ▇▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Effect, except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that it has performed an audit of the financial statements of the Company for the period from June 16, 2020 (inception) through June 30, 2020, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change in, or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Support Agreement.
(k) At least one (1) Business Day prior to the Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Software Acquisition Group Inc. II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ Weil, Gotshal & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statement, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇and Calder, in-house Cayman Islands counsel for the Company, to furnish have furnished to the Representative his opinion, Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex C heretoRepresentatives.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, Credit Suisse Securities (USA) LLC ▇.▇. ▇▇▇▇▇▇ Securities LLC BofA Securities, Inc. [●], 2021 the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, and to the effect that the signers of such certificate have carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the periods from January 1, 2021 through January 4, 2021 and from December 21, 2020 (date of inception) through December 31, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and Credit Suisse Securities (USA) LLC ▇.▇. ▇▇▇▇▇▇ Securities LLC BofA Securities, Inc. [●], 2021
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) 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.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Forward Purchase Agreement, the Insider Letters, the Registration Rights Agreement and the Administrative Services Agreement. Credit Suisse Securities (USA) LLC ▇.▇. ▇▇▇▇▇▇ Securities LLC BofA Securities, Inc. [●], 2021
(l) At least one Business Day prior to the Closing Date, Austerlitz Acquisition Sponsor, LP I shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered electronically, or if by mail, at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Sources: Underwriting Agreement (Austerlitz Acquisition Corp I)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ Winston & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentatives.
(c) The Company Representatives shall have requested and caused received from ▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇LLP, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, or threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Effect, except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that it has performed an audit of the financial statements of the Company for the period from [February 10, 2021] (inception) through [March 4, 2021], provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change in, or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(k) At least one (1) Business Day prior to the Effective Date, the Sponsor shall have caused the Private Placement Portion to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Aurvandil Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers contained herein as of the Execution Applicable Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company Partnership made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused Fried, Frank, Harris, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the CompanyPartnership, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex C Exhibit A hereto.
(c) The Partnership shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇, A Professional Corporation, counsel for the Partnership, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in substantially the form of Exhibit B hereto.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as Shearman & Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company Partnership shall have furnished to the Representative Representatives a certificate of the CompanyPartnership, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer Chairman of the CompanyBoard or the President and the principal financial or accounting officer of the general partner of the Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure PackageFinal Prospectus, the Final Prospectus Disclosure Package and any supplements or amendments thereto, thereto and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company Issuers in Section 1 of this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has Issuers have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the CompanyPartnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse Effect on Effect, except as set forth in or contemplated in the condition Disclosure Package and the Final Prospectus.
(financial f) The Partnership shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Applicable Time and at the Closing Date, “comfort letters” (which may refer to letters previously delivered to one or otherwisemore of the Representatives), prospectsdated respectively as of the Applicable Time and as of the Closing Date, in form and substance satisfactory to the Representatives, with respect to the certain unaudited financial statements and financial information contained in the Registration Statement, the Preliminary Prospectus used most recently prior to the Applicable Time and the Final Prospectus.
(g) Subsequent to the Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment thereto), there shall not have been (i) any adverse change or decrease specified in the letters referred to in paragraph (f) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the business, properties, earnings, business results of operations or properties financial condition of the Company Partnership and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the any series of Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(h) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the rating of any of the CompanyPartnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act)) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company Partnership shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling, LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time execution and delivery of this Agreement and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused (i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its opinion Representatives and 10b-5 statementthe Selling Stockholder their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives and the Selling Stockholder, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative effect set forth in Exhibit B and (ii) internal counsel of the Company to have furnished to the Representatives and the Selling Stockholder his opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives and the Selling Stockholder, substantially to the effect set forth in substantially the form of Annex C hereto.Exhibit C.
(dc) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) President, any Vice President, the Chief Financial Officer Officer, the Chief Accounting Officer, the General Counsel, the Controller or any Deputy Controller and by the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments thereto, supplement thereto and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company 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 hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has not been no any change or development that, individually or in the aggregate, has or would have a Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fe) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Execution Time Representatives and the Selling Stockholder, on the date hereof and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative customary “comfort letters, ,” dated respectively as of the Execution Time date hereof and as of the Closing Date in form and substance satisfactory to the RepresentativeRepresentatives and the Selling Stockholder.
(gf) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) thereof after the date of this Agreement, provided that the Representatives shall be given reasonable notice of any amendment before the date of this Agreement), the Preliminary Prospectus and the Final Prospectus (exclusive of any amendment or supplement theretothereto after the date of this Agreement, provided that the Representatives shall be given reasonable notice of any supplement before the date of this Agreement), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective changethat, in individually or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessaggregate, has or would be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the RepresentativeRepresentatives after consultation with the Company, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement Prospectus (exclusive of any amendment thereofthereof after the date of this Agreement, provided that the Representatives shall be given reasonable notice of any amendment before the date of this Agreement), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as such term is defined for purposes in Section 3(a)(62) of Rule 436(g) under the Act) Exchange Act or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been duly listed, subject to notice of issuance, on the New York Stock Exchange, and evidence thereof shall have been provided to the Representatives.
(j) Prior to the Closing Datedate of this Agreement, the Company Representatives shall have furnished to received executed Lock-up Agreements from each of the Representative such further information, certificates and documents as parties listed on Annex B hereto (the Representative may reasonably request“Locked-Up Parties”). If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its Representatives their opinion (including regulatory opinion) and 10b-5 statementnegative assurance letter, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ ▇. & ▇▇▇▇▇▇▇▇ LLP, in-house intellectual property counsel for the Company, to furnish have furnished to the Representative his Representatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex C heretoRepresentatives.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinionsand negative assurance letter, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendments or supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative lettersRepresentatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) The Company shall have furnished to the Representatives at the Execution Time and at the Closing Date a certificate of the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to the Representatives as to the accuracy of certain financial information included in the Registration Statement and the Disclosure Package.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ik) Prior The Securities shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Closing DateRepresentatives.
(l) At the Execution Time, the Company shall have furnished to the Representative such further information, certificates Representatives a lock-up letter substantially in the form of Exhibit A hereto from each executive officer and documents as director of the Representative may reasonably requestCompany addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time periods period prescribed for such filings by Rule 433filing and in accordance with Section 5(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Alberta Securities Commission or the Commission;
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to furnish have furnished to the Representative its Representatives their opinion and 10b-5 statementletter, dated the Closing Date and addressed to the RepresentativeRepresentatives, substantially in substantially the form of attached hereto as Annex B hereto.B;
(c) The Company shall have requested and caused M▇▇▇▇▇▇▇ ▇. T▇▇▇▇▇▇▇ LLP, in-house Canadian counsel for the Company, to furnish have furnished to the Representative his Representatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, substantially in substantially the form of attached hereto as Annex C hereto.C.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as B▇▇▇▇ B▇▇▇▇ L.L.P., U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.;
(e) The Representatives shall have received from Osler, H▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters;
(f) The Representatives shall have received from the Vice President & Corporate Secretary of the Company a certificate, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Annex D.
(g) The Representatives shall have received from Norton R▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, U.S. regulatory counsel to the Company, dated the Closing Date, an opinion substantially in the form attached hereto as Annex E.
(h) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer two of the Companyits senior officers, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus and Prospectus, any supplements or amendments theretoto the Final Prospectus, and this Agreement Agreement, and that to the best knowledge of their knowledgesuch signers, after due investigation:
(i) i. the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) . no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any notice objecting prospectus relating to its use the Securities has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatenedthreatened by the Alberta Securities Commission or the Commission; and
(iii) . since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).;
(fi) At The Representatives shall have received from PricewaterhouseCoopers LLP, the Company’s independent auditor, a letter or letters dated at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance reasonably satisfactory to the Representative.Representatives, together with signed or reproduced copies of such letter or letters for each of the other 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 Final Prospectus;
(gj) [Reserved.]
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereofthereto) and the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph paragraphs (fi) and (j) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereofthereto), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).;
(hl) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical Standard & Poors Rating Services, M▇▇▇▇’▇ Investor Services or Dominion Bond Rating Service Limited and no such rating organization” (as defined for purposes service shall have publicly announced or otherwise informed the Company that it has under surveillance or review, with possible negative implications, its rating or outlook of Rule 436(g) under the Act) Company or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.Company’s debt securities or preferred stock;
(im) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably requestrequest and as is customary in offerings of securities similar to the Securities. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice Representatives upon notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting AgreementS▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, Attention: R▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 1▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the Closing DateDate (or such other date as provided in this Section 6) or such other place as the Representatives shall so instruct.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Settlement Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his Representatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of attached in Annex C A hereto, in form and substance reasonably satisfactory to the Representatives.
(dc) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇ LLP, regulatory counsel to the Company, their opinion, dated the Closing Date and addressed to the Representatives, in the form attached in Annex B hereto, in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from King & Wood Mallesons, local counsel to the Company in the People’s Republic of China, their opinion, dated the Closing Date and addressed to the Representatives, in the form attached in Annex C hereto, in form and substance reasonably satisfactory to the Representatives.
(f) The Company shall have furnished to the Representative Representatives, at the Execution Time and at the Closing Date, a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer Officer, dated respectively as of the Execution Time and as of the Closing Date, in the form attached as Exhibit B hereto.
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the principal executive officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic roadshow used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fh) At The Company shall have requested and caused Ernst & Young to have furnished to the Representatives, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(gi) The Company shall have furnished to the Representatives, at the Execution Time, dated as of the Execution Time, a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the Company undertakes to provide such additional supporting documentation as the Representatives may reasonably request in connection with the verification of the foregoing certification.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ik) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(l) The Securities shall have been listed and admitted and authorized for trading on NASDAQ, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) The FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(n) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each officer and director of the Company listed on Schedule VI hereto addressed to the Representatives. The Company will use its best efforts to enforce the terms of each Lock-Up Agreement and will issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(o) The Company shall not have received an objection from NASDAQ with respect to the listing of additional shares notification that it filed with NASDAQ in connection with the Securities. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇ Procter LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at The New York Times Building, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (or such other place as mutually may be agreed upon), on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Applicable Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:conditions (any of which may be waived in writing by the Representative):
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company On the Closing Date, the Representative shall have requested received the opinion, dated as of the Closing Date, and caused addressed to the Representative on behalf of the Underwriters (and stating that it may be relied upon by counsel to the Underwriters), of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, in substantially the form attached hereto as Exhibit A. In rendering such opinion, Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters.
(c) The Representative shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the CompanyUnderwriters, with respect to furnish certain legal matters relating to this Agreement, and such other related matters as the Representative its opinion and 10b-5 statementmay reasonably require. In rendering such opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇. ▇▇▇ & ▇▇▇▇, in-house counsel for the Company, ▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C heretopass upon such matters.
(d) The Representative shall have received from BDO ▇▇▇▇▇▇▇, LLP, independent public accountants for the firm listed Company, comfort letters, at the time of execution of this Agreement and at the Closing Date, in form and substance reasonably satisfactory to the underwriting agreement as Representative and counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The representations and warranties of the Company contained in this Agreement that are qualified as to materiality shall be true and correct and all other representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects, in each case on and as of the Closing Date as if made on and as of the Closing Date, unless specifically limited to a certain date; the Company shall have furnished performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Representative a certificate Closing Date; and, except as set forth in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto after the date hereof) subsequent to the date of the Companymost recent financial statements in the Disclosure Package and the Final Prospectus, signed by there shall have been no event or development that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(xf) the Chief Executive Officer The issuance and (y) the Chief Financial Officer sale of the CompanySecurities pursuant to this Agreement shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued or any action, suit or proceeding shall have been commenced with respect to this Agreement before any court or governmental authority.
(g) The Representative shall have received a certificate, dated the Closing Date, signed by the Company's chief executive officer and its chief financial officer to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that to the best of their knowledgethat:
(i) the The representations and warranties of the Company in this Agreement are true and correct in all material respects as if made on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with performed in all the material respects all covenants and agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending At the effectiveness Closing Date, since the date of the Registration Statement this Agreement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any changein, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated incorporated by the Registration Statement (exclusive of any amendment thereof)reference in, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement theretothereto after the date hereof), no event or development occurred that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect;
(iii) Such officer has carefully examined the Disclosure Package and the Final Prospectus; in such officer's opinion and to the best of such officer's knowledge, neither the Disclosure Package and the Final Prospectus nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iv) Since the date of this Agreement or since the date of which information is given in the Disclosure Package and the Final Prospectus, except as described in or contemplated by the Disclosure Package and the Final Prospectus, neither the Company nor any of the Subsidiaries has incurred any liabilities or obligations direct or contingent (other than in the ordinary course of business) that are material to the Company and the Subsidiaries taken as a whole or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company or any of the Subsidiaries that is material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries at and as of the Closing Date, taken as a whole; and
(v) The sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) The Indenture shall have been duly executed and delivered by the Company and the Trustee, and when duly executed and delivered shall conform to the description thereof, or incorporated by reference, in the Disclosure Package and the Final Prospectus; and the Securities shall have been duly executed by the Company, and the Securities shall have been duly authenticated by the Trustee.
(i) On or before the Closing Date, the Representative and counsel for the Underwriters shall have received such further documents, certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company as they shall have heretofore reasonably requested from the Company.
(j) The Lockup Agreements described in Section 5(j) hereof shall be in full force and effect.
(k) Subsequent to the Execution Timetime of execution of this Agreement, there shall not have been (i) any decrease in the rating of any of the Company’s 's debt securities by any “"nationally recognized statistical rating organization” " (as defined for purposes of Rule 436(g) under the Securities Act) or (ii) any notice given of any intended or potential decrease in any such rating or that such organization has under surveillance or review (other than any such notice with positive implications of a possible change in any such upgrading) its rating that does not indicate the direction of the possible changeCompany's or any Subsidiary's debt securities.
(il) Prior to On the Closing Date, the Company shall have furnished to the Representative such further informationa certificate of the Company, certificates signed by the Executive Vice President and documents Chief Financial Officer, Secretary and Treasurer of the Company, dated as of the Representative may reasonably request. Applicable Time, with respect to certain financial information of the Company included or incorporated by reference in the Disclosure Package and the Final Prospectus to the effect of Exhibit C. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and any settlement date pursuant to Section 3 hereofas of the Closing Date, to the accuracy of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and or any supplement thereto, shall have been filed in the manner and within the time period required by under Rule 424(b); , and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Issuer Free Writing Prospectus shall have been filed with in the Commission manner and within the applicable time periods prescribed for such filings period required by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to that would prevent its use use, shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Company Representatives shall have requested and caused received from ▇▇▇▇▇ ▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to at the Representative its request of the Company, an opinion or opinions and 10b-5 statement, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representative, in substantially the form of Annex B heretoRepresentatives.
(c) The Company Representatives shall have requested and caused received from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinionsopinions and 10b-5 statement, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersRepresentatives.
(ed) The Company shall have furnished to the Representative Representatives a certificate signed by an officer of the Company, signed by (x) Company reasonably acceptable to the Chief Executive Officer and (y) the Chief Financial Officer of the CompanyRepresentatives, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that to the best of their knowledgeeffect:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, in each case, unless otherwise waived by the Representatives;
(ii) no stop order suspending the effectiveness of the Registration Statement Statement, as amended, or any notice objecting to that would prevent its use has been issued and no proceedings for that purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Package, there has been no Material Adverse Effect on material adverse change in the condition (financial or otherwise), prospectscondition, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(fe) At On the Execution Time date of this Agreement and at the Closing Date, the Company ▇▇▇▇▇ & ▇▇▇▇▇ LLP shall have requested and caused Ernst & Young LLP to furnish furnished to the Representative letters, Representatives a letter or letters dated respectively as of the Execution Time and as of the Closing Date such respective delivery date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Final Prospectus; provided, that the letters delivered shall use a “cut-off” date no more than three business days prior to each respective delivery date.
(gf) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto)Registration Statement, there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement theretoon or after the Execution Time), there shall not have been (i) any material change in the capital stock (other than upon exercise of outstanding stock options) or any significant increase in long-term debt of the Company or its subsidiaries, taken as a whole or (ii) any material adverse change, or any development involving a prospective material adverse change, in or affecting the financial condition, earnings, business or properties of the Company and its subsidiaries, taken as a whole, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering public offering, sale or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus Prospectus.
(exclusive of any amendment or supplement thereto)g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating ratings of any of the Company’s Securities or any other debt securities issued or guaranteed by the Company by ▇▇▇▇▇’▇ or S&P and neither Moody’s nor S&P shall have publicly announced that it has placed any “nationally recognized statistical rating organization” (of such securities under surveillance or review, or has changed its outlook with respect thereto, with negative implications, except as defined for purposes of Rule 436(g) under disclosed prior to the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changeExecution Time.
(i) Prior to the Closing Date, the Company The Securities shall have furnished to the Representative such further information, certificates be eligible for clearance and documents as the Representative may reasonably requestsettlement through DTC. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled terminated at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation termination shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Hp Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇Coie LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his their opinion, dated the Closing Date and addressed to the Representative, in substantially a form satisfactory to the Representative.
(c) The Selling Shareholders shall have requested and caused ▇▇▇▇▇▇ LLP, counsel for the Selling Shareholders, to have furnished to the Representative their opinion dated the Closing Date and addressed to the Representative, in a form of Annex C heretosatisfactory to the Representative.
(d) The Representative shall have received from the firm listed in the underwriting agreement as Fenwick & West LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company and each Selling Shareholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer principal executive officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At Each Selling Shareholder shall have furnished to the Representative a certificate, signed by such Selling Shareholder, dated the Closing Date, to the effect that the representations and warranties of such Selling Shareholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The principal financial officer of the Company shall have furnished the Representative, at the Execution Time and at the Closing Date, certificates, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, containing statements and information with respect to certain information contained in the Disclosure Package and the Final Prospectus.
(h) The Company shall have requested and caused Ernst & Young LLP to furnish have furnished to the Representative Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative.
(gi) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ij) Prior to the Closing Date, the Company and the Selling Shareholders shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(k) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A hereto from each officer and director of the Company (including any estate or charitable entities affiliated with such officers or directors) each Selling Shareholder addressed to the Representative. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company and each Selling Shareholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Fenwick & West LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Zillow Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused C▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, counsel for the Company, to furnish have furnished to the Representative its Representatives their opinion and 10b-5 statementnegative assurance letter, each dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially form and substance reasonably satisfactory to the form of Annex B heretoRepresentatives.
(c) The Company shall have requested and caused ▇C▇▇▇▇▇ ▇. ▇▇▇▇LLP, in-house intellectual property counsel for the Company, to furnish have furnished to the Representative his Representatives their intellectual property opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially form and substance reasonably satisfactory to the form of Annex C heretoRepresentatives.
(d) The Representative Company shall have requested and caused G▇▇▇▇▇▇▇▇ R▇▇▇ S▇▇▇▇ & D▇▇▇▇ LLP, New Jersey counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from the firm listed in the underwriting agreement as G▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chairman of the Board, Chief Executive Officer or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fg) At The Representatives shall have received from KPMG LLP, independent registered public accounting firm for the Company, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing 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, the Disclosure Package, and each free writing prospectus, if any.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ik) Prior The Securities , shares and warrants shall have been listed and admitted and authorized for trading on the NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Closing DateRepresentatives.
(l) At the Execution Time, the Company shall have furnished to the Representative such further information, certificates Representatives a letter substantially in the form of Exhibit A hereto from each officer and documents as director of the Representative may reasonably requestCompany and specified stockholders of the Company addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of G▇▇▇▇▇▇ Procter LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at G▇▇▇▇▇▇ Procter LLP, 6▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, counsel for the Company, to furnish have furnished to the Representative its their opinion and 10b-5 negative assurances statement, dated the Closing Date and addressed to the Representative, in substantially each case in form and substance reasonably satisfactory to counsel to the form of Annex B heretoUnderwriters.
(c) The Company shall have requested and caused ▇Bass, ▇▇▇▇▇ ▇. & ▇▇▇▇▇ PLC, in-house counsel for the Company, to furnish have furnished to the Representative his their opinion, dated the Closing Date and addressed to the Representative, in substantially form and substance reasonably satisfactory to counsel to the form of Annex C heretoUnderwriters.
(d) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇ Zedek ▇▇▇▇▇▇ LLP, special patent counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, in form and substance reasonably satisfactory to counsel to the Underwriters.
(e) The Company shall have requested and caused Ropes & ▇▇▇▇ LLP, special regulatory counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, in form and substance reasonably satisfactory to counsel to the Underwriters.
(f) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(eg) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chairman of the Board or the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted and communicated to the Company or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fh) At the Execution Time and at the Closing Date, the The Company shall have requested and caused Ernst & Young LLP to furnish have furnished to the Representative Representative, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to the Representative), dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and that they have performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, 2011, and as at March 31, 2011 in accordance with Statement on Auditing Standards No. 100, and stating that in their opinion the financial statements and schedules examined by them and included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus comply in form in all material respects with the applicable accounting requirements of the Act and the Exchange Act, and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(gi) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ik) The Company shall have filed a Notification: Listing of Additional Shares with the Nasdaq GM with respect to the Securities and shall have received no objection thereto from the Nasdaq GM.
(l) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A hereto from each executive officer and director of the Company addressed to the Representative.
(m) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates (including a Secretary’s Certificate) and documents as the Representative may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇ Procter LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, on at The New York Times Building, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Option Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives their opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives, substantially in the forms attached hereto as Exhibit [—]-1 and [—]-2.
(c) The Representatives shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such an opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer President, and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fe) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance reasonably satisfactory to the Representative.Representatives containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus:
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further customary information, certificates and documents as the Representative Representatives may reasonably request.
(h) The Securities shall have been listed and admitted and authorized for trading on the [New York Stock Exchange][Nasdaq Global Market], and satisfactory evidence of such actions shall have been provided to the Representatives.
(i) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and the stockholders in each case listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ Fenwick & ▇▇▇▇▇▇▇▇West LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statementRepresentatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex B heretoagreed by such counsel and the Representatives.
(c) The Company shall have requested and caused Seed IP Law Group PLLC and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇Ring, in-house intellectual property counsel for the Company, to furnish have furnished to the Representative his Representatives their opinions, dated the Closing Date and addressed to the Representatives, in the forms agreed by such counsel and the Representatives.
(d) The Company shall have requested and caused King & Spalding LLP, regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex C heretoagreed by such counsel and the Representatives.
(de) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fg) At the Execution Time and at the Closing Date, the The Company shall have requested and caused Ernst & Young LLP to furnish have furnished to the Representative Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto)) and prior to the issuance of the Underwritten Securities, there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) Subsequent to the Execution TimeTime and prior to the issuance of the Underwritten Securities, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ik) Prior The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Select Market, and satisfactory evidence of such actions shall have been provided to the Closing DateRepresentatives.
(l) At the Execution Time, the Company shall have furnished to the Representative such further information, certificates Representatives a letter substantially in the form of Exhibit A hereto from each officer and documents as director of the Representative may reasonably requestCompany addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇Sidley Austin LLP, counsel for the Company, to furnish have furnished to the Representative its Representatives their opinion letters and 10b-5 statementnegative assurance letter, dated the Closing Date Date, or the Settlement Date, as applicable, and addressed to the RepresentativeRepresentatives, in substantially form and substance reasonably satisfactory to the form of Annex B heretoRepresentatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as Goodwin Procter, LLP, counsel for the Underwriters, such opinion or opinions, dated as of the Closing Date Date, or the Settlement Date, as applicable, and addressed to the RepresentativeRepresentatives, with respect in form and substance reasonably satisfactory to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersRepresentatives.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chairman of the Board or the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated as of the Closing Date, or the Settlement Date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendments or supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date Date, or the Settlement Date, as applicable, with the same effect as if made on the Closing Date, or the Settlement Date, as applicable, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, or the Settlement Date, as applicable;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect on material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(fe) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, or the Company shall have requested and caused Ernst & Young LLP Settlement Date, as applicable, letters (which may refer to furnish letters previously delivered to one or more of the Representative lettersRepresentatives), dated respectively as of the Execution Time and as of the Closing Date Date, or the Settlement Date, as applicable, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the SEC thereunder, in form and substance satisfactory to the Representatives and 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 or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(h) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company listed on Schedule V hereto addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Goodwin Procter LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at 620 Eighth Avenue, New York, New York 10018, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Units and the Option SecuritiesUnits, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & Ellenoff ▇▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇and Calder, in-house Cayman Islands counsel for the Company, to furnish have furnished to the Representative his opinion, its opinions dated the Closing Date and addressed to the Representative, in substantially a form satisfactory to the form of Annex C heretoRepresentative.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have furnished to the Representative a certificate signed by the Secretary or the Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company as of December 31, 2020 and for the period from August 25, 2020 (date of inception) through December 31, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(j) 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.
(k) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(l) On or prior to the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Subscription Agreements, the Private Placement Warrants Purchase Agreements, Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(m) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as net forth on the cover of the Prospectus.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Fenwick & West LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(d) The Company shall have requested and caused Fish & ▇▇▇▇▇▇▇▇▇▇ P.C., counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer Chairman of the Board or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company in their respective capacities as officers of the Company and on behalf of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that to the best of their knowledgethat:
(i) To their Knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiariesCompany, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fg) At The Company shall have requested and caused each of CohnReznick LLP and Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, and in a form reasonably satisfactory to the Representatives.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ij) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(k) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and certain stockholders (as agreed upon by the Underwriters and the Company) addressed to the Representatives.
(m) The principal financial or accounting officer for the Company shall have furnished to the Representatives a certificate, in his or her capacity as an officer of the Company and on behalf of the Company, dated the Closing Date, in form and substance satisfactory to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ Fenwick & ▇▇▇▇▇▇▇▇West LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statementRepresentatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex B heretoagreed by such counsel and the Representatives.
(c) The Company shall have requested and caused Seed IP Law Group PLLC and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇Ring, in-house intellectual property counsel for the Company, to furnish have furnished to the Representative his Representatives their opinions, dated the Closing Date and addressed to the Representatives, in the forms agreed by such counsel and the Representatives.
(d) The Company shall have requested and caused Hyman, Phelps, & ▇▇▇▇▇▇▇▇, PC, regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex C heretoagreed by such counsel and the Representatives.
(de) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fg) At the Execution Time and at the Closing Date, the The Company shall have requested and caused Ernst & Young LLP to furnish have furnished to the Representative Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto)) and prior to the issuance of the Underwritten Securities, there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) Subsequent to the Execution TimeTime and prior to the issuance of the Underwritten Securities, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ik) Prior The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Select Market, and satisfactory evidence of such actions shall have been provided to the Closing DateRepresentatives.
(l) At the Execution Time, the Company shall have furnished to the Representative such further information, certificates Representatives a letter substantially in the form of Exhibit A hereto from each officer and documents as director of the Representative may reasonably requestCompany addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatenedor, to the knowledge of the Company, threatened by the SEC.
(b) The Company shall have requested and caused (i) ▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative and its counsel their opinion and 10b-5 statementnegative assurance letter, dated the Closing Date and addressed to the Representative, substantially in substantially the form of Annex B Exhibit A hereto.
; and (cii) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, in-house counsel Senior Vice President, General Counsel, and Secretary for the Company, to furnish have furnished to the Representative and its counsel his opinion, dated the Closing Date and addressed to the Representative, substantially in substantially the form of Annex C Exhibit B hereto.
(dc) The Representative shall have received from the firm listed in the underwriting agreement as Shearman & Sterling LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) principal financial or accounting officer of the Chief Financial Officer Company or the treasurer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have carefully has examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendments or supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect on change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity, or condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, subsidiaries taken as a whole, whether or not arising from transactions that would result in the ordinary course of businessa Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(fe) At The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP comfort letters (which may refer to furnish letters previously delivered to the Representative lettersRepresentative), dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the SEC thereunder and that they have performed a review of the unaudited interim financial information of the Company as at and for the three, six and nine-month periods ended March 31, 2019, June 30, 2019 and September 30, 2019, respectively, in accordance with the review standards of the PCAOB, and substantially in the form set forth in Exhibit C hereto.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereofor supplement thereto) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereofor supplement thereto), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ih) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) The Company shall have taken all action required to be taken by it for the Securities to be eligible for clearance and settlement through DTC, it being understood that the Underwriters shall obtain relevant CUSIP numbers for the Notes. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions opinions, letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentative and such cancellation shall be without liability of any party to any other party, except to the extent provided in Sections 5 and 7. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Dana Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Debt Securities and the Option Securities, as the case may be, shall be subject subject, in the discretion of the Representative, to the accuracy of the representations and warranties and other statements on the part of the Company contained herein as of the Execution Time date hereof and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company Company’s officers on and as of the Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time periods period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule 433433 under the Act shall have been made, and no such filings shall have been made without the consent of the Representative; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representative’s reasonable satisfaction.
(b) The Company Representative shall have requested and caused be furnished with opinions, dated the Closing Date, of Hinkle, Hensley, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., substantially in the form included as Exhibit A, and ▇▇▇▇▇ Day, Chicago, Illinois, counsel for the Company, substantially in the form included as Exhibit B.
(c) The Representative shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the CompanyNew York, to furnish to the Representative its opinion and 10b-5 statementNew York, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, opinions dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer President or any Vice President of the Company, dated the Closing Date, as to the matters set forth in paragraphs (a) and (h) of this Section 7 and to the further effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;; and
(ii) there has been no stop order suspending material adverse change in the effectiveness condition of the Company, financial or otherwise, or in the earnings, affairs or business prospects of the Company, whether or not arising in the ordinary course of business, from that set forth or contemplated by the Registration Statement Statement, the most recent Preliminary Prospectus or any notice objecting to its use has been issued the Prospectus.
(e) The Representative shall have received letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the date of this Agreement and no proceedings for that purpose have been instituted orClosing Date, respectively, and in form and substance satisfactory to the Company’s knowledgeRepresentative) advising that (i) they are an independent registered public accounting firm with respect to the Company as required by the Act and published rules and regulations of the Commission thereunder, threatened; and
(ii) in their opinion, the financial statements and supplemental schedules included or incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus or Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations of the Commission thereunder, (iii) that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholder of the Company since the date of the most recent audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus or Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that: (A) any material modifications should be made to any unaudited financial statements of the Company included or incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus or Prospectus for them to be in conformity with generally accepted accounting principles or any unaudited financial statements of the Company included or incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus or Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Disclosure Package most recent Preliminary Prospectus or Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Registration Statement, most recent Preliminary Prospectus or Prospectus, there were any adverse changes, at a specified date not more than three business days prior to the date of the letter, in the Disclosure Package capital stock of the Company, increases in long-term debt or decreases in stockholder’s equity or net current assets of the Company as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the most recent Preliminary Prospectus or Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus and the Final Prospectus with indicated amounts in the financial statements or accounting records of the Company and (exclusive excluding any questions of any supplement thereto)legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto)most recent Preliminary Prospectus, there shall not have been (i) any adverse change or decrease specified in the letter or letters dated as of the Closing Date referred to in paragraph (fe) of this Section 6 7 which is so material and adverse as to make it impractical or inadvisable in the judgment of the Representative to proceed with the public offering or the delivery of the Debt Securities on the terms and in the manner contemplated by the Pricing Disclosure Package.
(g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Debt Securities or any other debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Act (other than downgrades of debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of downgrades of ratings of any third parties insuring such debt securities) and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Debt Securities or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of any such announcement with respect to any third parties insuring such debt securities).
(h) The Company shall not have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or action, order or decree of any court, arbitrator or governmental or regulatory authority, otherwise than as set forth or contemplated in the most recent Preliminary Prospectus, and (ii) incurred since the date of this Agreement, any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company, and there shall not have been any change in the capital stock or long-term debt of the Company or any change, or any development involving a prospective change, in or affecting the condition (general affairs, management, business, financial position, stockholder’s equity, results of operations or otherwise), earnings, business or properties prospects of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except otherwise than as set forth in or contemplated in the Disclosure Package most recent Preliminary Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto)Prospectus, the effect of which, in any such case referred to described in clause (i) or (ii) above, is, above is in the sole judgment of the Representative, Underwriters so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering offering, sale or the delivery of the Debt Securities as on the terms and in the manner contemplated by this Agreement and the Prospectus.
(i) No Representative shall have advised the Company that the Registration Statement (exclusive of any amendment thereof)Statement, the Pricing Disclosure Package and the Final Prospectus (exclusive of or Prospectus, or any amendment or supplement thereto), contains an untrue statement of fact which in the opinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(hj) Subsequent to the Execution Time, there No action shall not have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any decrease in federal, state or foreign governmental or regulatory authority that would, as of the rating Closing Date, prevent the issuance or sale of the Debt Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under Closing Date, prevent the Act) issuance or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction sale of the possible changeDebt Securities.
(ik) Prior All corporate proceedings and other legal matters incident to the authorization, form and validity of the Indenture and this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished to the Representative such further other customary information, certificates and documents as the Representative they may reasonably request.
(l) The Company and Trustee shall have entered into the supplemental Indenture relating to the Debt Securities, and the Representative shall have received counterparts, conformed as executed thereof, and the Debt Securities shall have been duly executed and delivered by the Company and authenticated by the Trustee. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriterstheir counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing writing, or by telephone or facsimile transmission confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Southwestern Public Service Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Firm Shares and the Option SecuritiesAdditional Shares on the Closing Date or any Date of Delivery, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Operating Partnership contained herein as of the Execution Time and date hereof, the Closing Date and any settlement date pursuant to Section 3 hereofDate of Delivery, to the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusRegistration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act and no proceedings for that purpose shall have been instituted or be pending or threatened by the Commission, and any supplement theretorequest on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. The Prospectus containing information omitted pursuant to Rule 430B relating to the description of the Shares, the specific method of distribution and similar matters shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8); ), as applicable (or any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, post-effective amendment providing such information shall have been filed and become effective in accordance with the Commission within the applicable time periods prescribed for such filings by requirements of Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened430B).
(b) The Company shall have requested and caused Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and any Date of Delivery, and addressed to the Representative, in the form mutually agreed upon, and their opinion, dated the Closing Date and any Date of Delivery, and addressed to the Representative, in form reasonably satisfactory to the Representative, that the Company is qualified to be taxed as a REIT pursuant to sections 856 through 860 of the Code for its taxable year ended December 31, 2010 and that the Company’s current organization and proposed method of operation will enable it to continue to qualify as a REIT for its taxable year ending December 31, 2011 and in the future.
(c) The Representative shall have received from Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ (US) LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any Date of Delivery, and addressed to the Representative, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company and the Operating Partnership shall have furnished to the Representative a certificate of the Companycertificate, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer Chairman of the CompanyBoard or the President and the principal financial or accounting officer of the Company (and appropriate officer of the Operating Partnership), dated the Closing DateDate and any Date of Delivery, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and Prospectus, any supplements or amendments thereto, to the Prospectus and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date (and any Date of Delivery) with the same effect as if made on the Closing DateDate (or any Date of Delivery), and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied hereunder at or prior to the Closing DateDate (or any Date of Delivery);
(ii) the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse Effect material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Prospectus.
(e) On the date of this Agreement and on the Closing Date (including any Date of Delivery, as the case may be) PricewaterhouseCoopers LLP shall have furnished to the Representative, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Final Prospectus Prospectus; provided, that the letter delivered on the Closing Date or any Date of Delivery, as the case may be, shall use a “cut-off” date no more than three (exclusive 3) Business Days prior to such Closing Date or such Date of any supplement thereto)Delivery.
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time date hereof or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto)Prospectus, there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or or
(ii) above, is, in the sole and reasonable judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, Shares shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date and any settlement date pursuant to Section 3 hereofeach Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus Supplement, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ B▇▇▇▇ & H▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its Representatives their opinion and 10b-5 statementnegative assurance letter, dated the Closing Date each Time of Delivery, and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentatives.
(c) The Chief Financial Officer of the Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish delivered to the Representative his opinionRepresentatives a certificate, at the Execution Time and at each Time of Delivery, letters, dated respectively as of the Closing Date Execution Time and addressed as of each Time of Delivery, in a form reasonably acceptable to the Representative, in substantially the form of Annex C heretoRepresentatives.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as M▇▇▇▇, L▇▇▇▇, C▇▇▇, F▇▇▇▇▇, Glovsky and P▇▇▇▇, P.C., counsel for the Underwriters, such opinion or opinionsand negative assurance letter, dated the Closing Date each Time of Delivery and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Pricing Disclosure Package, the Final Prospectus Supplement (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have requested and caused Xsensus, LLP, intellectual property counsel for the Company, to have furnished to the Representative Representatives their opinion, dated each Time of Delivery, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Dateeach Time of Delivery, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Pricing Disclosure Package, the Final Prospectus Supplement and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Shares, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such Time of Delivery with the same effect as if made on the Closing Date, such Time of Delivery and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Datesuch Time of Delivery;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Pricing Disclosure Package and the Final Prospectus Supplement (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Effect.
(fg) At the Execution Time and at the Closing Date, the The Company shall have requested and caused Ernst & Young LLP BDO USA, P.C. to furnish have furnished to the Representative Representatives, at the Execution Time and at each Time of Delivery, letters, dated respectively as of the Execution Time and as of the Closing Date each Time of Delivery, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus Supplement (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Pricing Disclosure Package and the Final Prospectus Supplement (exclusive of any amendment or supplement thereto).
(hi) Subsequent Prior to each Time of Delivery, the Company shall have furnished to the Execution TimeRepresentatives a Secretary’s Certificate, there in form and substance reasonably satisfactory to the Representatives and customary for the type of offering contemplated by this Agreement.
(j) Prior to each Time of Delivery, the Company shall not have been any decrease in furnished to the rating Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) There are (and prior to each Time of Delivery, will be) no debt securities, convertible securities or preferred stock issued or guaranteed by the Company or any of the Company’s debt securities its subsidiaries that are rated by any a “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change).
(il) Prior The Company shall have filed a listing of additional shares covering the Shares with Nasdaq, and satisfactory evidence of such actions shall have been provided to the Closing DateRepresentatives.
(m) At the Execution Time, the Company shall have furnished to the Representative such further information, certificates Representatives a letter substantially in the form of Exhibit A hereto from each executive officer and documents as director of the Representative may reasonably requestCompany and certain stockholders of the Company identified on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date respective Time of Delivery by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Lightpath Technologies Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Optional Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the its Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement and each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, and each road show used in connection with the Offering, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused Withum to have furnished to the Representative, at the Execution Time and at the Closing Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 12, 2020 (inception) through June 22, 2020; provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this Section 7(e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 7(e) hereof or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Offered Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter and the Registration Rights Agreement.
(k) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 shall be delivered at the office of ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇, unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ Procter LLP, U.S. counsel for the Company, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, British Virgin Islands counsel for the Company, to furnish have each furnished to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his Representatives an opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially form and substance satisfactory to the form of Annex C heretoRepresentatives.
(dc) The Representative Representatives shall have received from ▇▇▇▇, ▇▇▇▇▇, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the firm listed in the underwriting agreement as Underwriters, ▇▇▇▇▇▇▇, British Virgin Islands counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fe) At The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, together with signed or reproduced copies of such letters for each of the other 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 of the Company, Quench USA, Inc., Atlas Watersystems, Inc., ▇▇▇▇▇ Water Systems, Inc. and their respective subsidiaries contained in the Registration Statement, the Preliminary Prospectus and the Prospectus; provided, that the letter delivered on the Closing Date or the settlement date, as the case may be, shall use a “cut-off” date no more than three business days prior to such Closing Date or the settlement date, as applicable.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further customary information, certificates and documents as the Representative Representatives may reasonably request.
(h) The Securities shall have been admitted and authorized for trading on the New York Stock Exchange subject to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives.
(i) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each major shareholder listed on Schedule IV hereto addressed to the Representatives.
(j) At or prior to the Effective Date, the Company shall have completed the LLC Conversion as contemplated by the description thereof set forth in the Disclosure Package and the Prospectus. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇, ▇▇▇▇▇, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Applicable Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to the Representatives.
(c) On the Closing Date, the Underwriters shall have received the favorable opinion of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, regulatory counsel for the Company, dated as of the Closing Date, in form and substance satisfactory to the Representatives.
(d) The Representatives shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer Chairman of the Board or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since except as otherwise disclosed in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), subsequent to the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Change.
(f) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Execution Representatives, at the Applicable Time and at the Closing Date, (i) letters (which may refer to letters previously delivered to one or more of the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative lettersRepresentatives), dated respectively as of the Execution Applicable Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are independent accountants with respect to the Company within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the three-month period ended, and as at March 31, 2014, in accordance with Statement on Auditing Standards No. 100, and (ii) letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Applicable Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to Sheridan within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of Sheridan for the three-month period ended, and as at March 31, 2014, in accordance with Statement on Auditing Standards No. 100 and, in each of cases (i) and (ii), containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(g) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Amsurg Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have requested and caused received the favorable opinion of (i) ▇▇▇▇▇ Lord LLP, counsel for the Company, dated as of the Closing Date, the form of which is attached as Exhibit A, and (ii) ▇▇▇▇▇▇▇▇ & Wedge, Nevada counsel of the Company, dated as of the Closing Date, the form of which is attached as Exhibit B.
(c) The Representatives shall have received the favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated as of the Closing Date and addressed to the RepresentativeDate, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chairman of the Board, the Chief Executive Officer or the President and (y) the Chief Financial Officer or Chief Accounting Officer of the Company, dated as of the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendments or supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) Subsequent to the representations Execution Time, there has not occurred any Material Adverse Effect;
(ii) the representations, warranties and warranties covenants of the Company in this Agreement were true and correct on and as of the date hereof and are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and ; and
(iii) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fe) At the Execution Time and at the Closing Date, the Company The Representatives shall have requested and caused received from Ernst & Young LLP LLP, the independent registered public accounting firm for the Company, (i) at the Execution Time, a letter (which may refer to furnish letters previously delivered to one or more of the Representative lettersRepresentatives), dated respectively as of the Execution Time and as of the Closing Date Time, in form and substance satisfactory to the RepresentativeRepresentatives, covering the financial information of the Company included or incorporated by reference in the Registration Statement and the Preliminary Prospectus and other customary information, and (ii) at the Closing Date, a letter (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Closing 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 clause (i), except that (A) it shall cover the financial information included in or incorporated by reference in the Final Prospectus and any amendment or supplement thereto and (B) the specified date referred to therein for carrying out of procedures shall be no more than three business days prior to the Closing Date.
(f) The Representatives shall have received from KPMG LLP, the independent registered public accounting firm for ▇▇▇▇▇ Park Energy LLC and its subsidiaries, (i) at the Execution Time, a letter (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Execution Time, in form and substance satisfactory to the Representatives, covering the financial information of ▇▇▇▇▇ Park Energy LLC included or incorporated by reference in the Registration Statement and the Preliminary Prospectus and other customary information, and (ii) at the Closing Date, a letter (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Closing 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 clause (i), except that (A) it shall cover the financial information included in or incorporated by reference in the Final Prospectus and any amendment or supplement thereto and (B) the specified date referred to therein for carrying out of procedures shall be no more than three business days prior to the Closing Date.
(g) The Representatives shall have received from ▇▇▇ ▇▇▇▇▇▇▇ & Associates, Inc., independent petroleum consultants with respect to the Company and its subsidiaries, (i) at the Executive Time, a letter, dated as of the Execution Time, in form and substance satisfactory to the Representatives, covering the reserve information included or incorporated by reference in the Registration Statement and the Preliminary Prospectus and other customary information, and (ii) at the Closing Date, a letter, dated as of the Closing 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 clause (i), except that it shall cover the reserve information included or incorporated by reference in the Final Prospectus and any amendment or supplement thereto.
(h) The Representatives shall have received from Netherland, ▇▇▇▇▇▇ & Associates, Inc., independent reserve engineers for the Company and its subsidiaries, (i) at the Execution Time, a reserve report confirmation letter, dated as of the Execution Time, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in such letters with respect to its audits of the reserves of the Company referred to in the Disclosure Package and (ii) at the Closing Date, a reserve report confirmation letter, dated as of the Closing 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 clause (i), except that it shall cover the reserve information included or incorporated by reference in the Final Prospectus and any amendment or supplement thereto.
(i) The Representatives shall have received from the Chief Financial Officer of the Company, (i) at the Execution Time, a certificate, dated as of the Execution Time, in form and substance satisfactory to the Representatives, providing “management comfort” with respect to certain financial statements and financial information included or incorporated by reference in the Registration Statement and the Preliminary Prospectus, and (ii) at the Closing Date, a certificate, dated as of the Closing Date, in form and substance satisfactory to the Representatives, to the effect that the Chief Financial Officer reaffirms the statements made in the certificate furnished pursuant to clause (i), except that it shall cover the financial statements and financial information included or incorporated by reference in the Final Prospectus and any amendment or supplement thereto.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (e), paragraph (f), paragraph (g), paragraph (h) or paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), or (ii) in the sole judgment of the Representatives, any Material Adverse Effect.
(hk) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(l) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(im) Prior The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Closing Date, the Company Representatives.
(n) The Representatives shall have furnished to received an agreement for the Representative such further informationbenefit of the Underwriters in the form set forth as Exhibit C hereto, certificates and documents as signed by each of the Representative may reasonably requestpersons listed on Exhibit D hereto. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing (including by electronic mail) or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Suite 2100, Dallas, Texas 75201 or sent by electronic mail to ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative, in a form reasonably acceptable to the Representative.
(c) The Representative shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to the Representative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;; Credit Suisse Securities (USA) LLC [●], 2020
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(fe) At The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from July 7, 2020 (date of inception) through July 14, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, Credit Suisse Securities (USA) LLC [●], 2020 assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration and Stockholder Rights Agreement and the Administrative Services Agreement.
(k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused a portion of the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.. Credit Suisse Securities (USA) LLC [●], 2020
Appears in 1 contract
Sources: Underwriting Agreement (Equity Distribution Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its their obligations hereunder and to the following additional conditions:
(a) The Final If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statementRepresentatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex B hereto.attached hereto as Exhibit A.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ LLP, in-house tax counsel for the Company, to furnish have furnished to the Representative his Representatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex C hereto.attached hereto as Exhibit B.
(d) The Representative Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland corporate counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form attached hereto as Exhibit C.
(e) The Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, on behalf of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageProspectus, any supplements to the Prospectus, the Final Prospectus and any supplements or amendments thereto, Disclosure Package and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) the Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledgeKnowledge, threatened; and;
(iii) since the date of the most recent financial statements included in the Disclosure Package Prospectus, and the Final Prospectus (exclusive of any supplement thereto)document that is incorporated by reference therein, there has been no Material Adverse Effect material adverse effect on the condition (business, financial condition, results of operations, management, properties or otherwise), prospects, earnings, business or properties prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).Prospectus; and
(fiv) At they have carefully examined the Execution Time Disclosure Package and at the Prospectus and, in their opinion (A) as of the Closing Date, the Disclosure Package and the Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) since the Applicable Time, no event has occurred which should have been set forth in a supplement or amendment to the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused Ernst & Young LLP to furnish have furnished to the Representative lettersRepresentatives, at the Execution Time and at the Closing Date, a letter, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given or incorporated by reference in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (business, financial condition, results of operations, management, properties or otherwise), earnings, business or properties prospects of the Company and its subsidiaries Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(j) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Company shall have furnished to the Representatives a letter in the form of Exhibit D hereto from each director and executive officer of the Company named in the Registration Statement and the Prospectus. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇ Procter LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Company, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statementopinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, in form and substance reasonably satisfactory to the Representatives, substantially in the form of Annex B forms set forth on Exhibits B-1 through B-3 hereto.
(c) The Company Representatives shall have requested and caused ▇received from ▇▇▇▇▇ ▇. ▇▇▇▇▇ L.L.P., in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Package and Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer or President and (y) the Chief Financial Officer or Chief Accounting Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Package and Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives at the Execution Time a certificate, signed by the Chief Financial Officer substantially in the form set forth on Exhibit C hereto.
(f) On the date hereof, the Underwriters shall have received from each of Ernst & Young LLP, UHY LLP and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. a “comfort letter” dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives, covering the financial information contained, or incorporated by reference, in the Registration Statement and Preliminary Prospectus and other customary matters. In addition, on the Closing Date, the Underwriters shall have received from such accountants a “bring-down comfort letter” dated the Closing Date addressed to the Underwriters, in form and substance satisfactory to the Representatives, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial information in the Registration Statement and the Prospectus and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than three (3) days prior to the Closing Date.
(g) On the date hereof, the Underwriters shall have received from CGA, independent petroleum engineers, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives, covering the oil and gas reserves information in the Registration Statement and Preliminary Prospectus and other customary matters. In addition, on the Closing Date, the Underwriters shall have received from such independent petroleum engineers a “bring-down comfort letter” dated the Closing Date addressed to the Underwriters, in form and substance satisfactory to the Representatives, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the oil and gas reserves information in the Registration Statement and the Prospectus and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than three (3) days prior to the Closing Date.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease in the customary level of comfort provided in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, Parties taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ij) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further customary information, certificates and documents as the Representative Representatives may reasonably request.
(k) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and reasonably satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each Apollo Entity that owns Common Stock addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at One Shell Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date and any the applicable settlement date pursuant to Section 3 hereofdate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its the use of the Registration Statement, the Preliminary Prospectus or the Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Underwriters shall have requested received on the Closing Date and caused ▇any settlement date an opinion of ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, outside counsel for the Company and the Operating Partnership, dated such date, with respect to the matters identified in Exhibit A. The opinion of ▇▇▇, counsel for the Company, to furnish ▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP described in Exhibit A shall be rendered to the Representative its Underwriters at the request of the Company and shall so state therein. In giving the opinion and 10b-5 statement, dated the Closing Date and addressed with respect to the Representativematters identified in Exhibit A, ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP may rely, as to all matters governed by Maryland law, upon the opinion of ▇▇▇▇ ▇▇▇▇▇ LLP referred to in substantially the form of Annex B heretoSection 6(c) below.
(c) The Company Underwriters shall have requested received on the Closing Date and caused any settlement date an opinion of ▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel to the Company, dated such date, with respect to the matters identified in Exhibit B hereto. The opinion of ▇. ▇▇▇ ▇▇▇▇, in-house counsel for the Company, to furnish ▇ LLP described in Exhibit B shall be rendered to the Representative his opinion, dated Underwriters at the Closing Date request of the Company and addressed to the Representative, in substantially the form of Annex C heretoshall so state therein.
(d) The Representative Underwriters shall have received from on the firm listed Closing Date and any settlement date an opinion of [—], outside counsel for the Manager, dated such date, with respect to the matters identified in Exhibit C. The opinion of [—] described in Exhibit C shall be rendered to the underwriting agreement as Underwriters at the request of the Manager and shall so state therein.
(e) The Underwriters shall have received on the Closing Date and any settlement date an opinion of Sidley Austin LLP, counsel for the Underwriters, dated such date, in the form and substance reasonably satisfactory to the Underwriters. In giving such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents may rely, as they request for to all matters governed by Maryland law, upon the purpose opinion of enabling them ▇▇▇▇ ▇▇▇▇▇ LLP referred to pass upon such mattersin Section 6(c) above.
(ef) The Company shall have furnished to the Representative Representatives a certificate of the CompanyCompany on the Closing Date and any settlement date, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Datesuch date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its the use of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Company Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(fg) At The Manager shall have furnished to the Representatives on the Closing Date and any settlement date a certificate of the Chief Executive Officer and Chief Financial Officer of the Manager, dated such date, to the effect that the signers of such certificate have reviewed the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Manager in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Manager has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; and
(ii) since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, there has been no Manager Material Adverse Effect.
(h) The Company shall have requested and used its commercially reasonable efforts to have caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and each settlement date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date each such date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to financial statements and certain financial information of the Company, contained in the Registration Statement, the Disclosure Package and the Prospectus.
(gi) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) Registration Statement and the Final Prospectus (exclusive of any amendment or supplement thereto)Prospectus, there shall not have been (iA) any adverse change or decrease specified in the letter or letters referred to in paragraph (fh) of this Section 6 or (iiB) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (iA) or (iiB) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ij) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(k) The Securities shall have been approved for listing on the NYSE, subject to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit D-1 hereto from each officer and director of the Company listed in Exhibit D-2 hereto and addressed to the Representatives.
(m) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and the arrangements relating to the offering of the Securities. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Sidley Austin LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the each Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Altisource Residential Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statement, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇and Calder, in-house Cayman Islands counsel for the Company, to furnish have furnished to the Representative his opinion, Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex C heretoRepresentatives.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the its Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the RepresentativeRepresentatives.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) 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.
(j) The Securities shall be duly listed subject to notice of issuance on Nasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Founder’s Purchase Agreement, the Share Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Company shall have caused proceeds from the sale of the Private Placement Shares to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Ordinary Shares issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per share as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Ordinary Shares in any jurisdiction designated by the Representatives pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 1 contract
Sources: Underwriting Agreement (Jaws Wildcat Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may bedescribed in Section 2 above, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Initial Sale Time, the Execution Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any amendment or supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened and any request of the Commission for additional information (to be included in the Registration Statement or the Final Prospectus or otherwise with respect to the offering of the Securities) shall have been complied with in all material respects.
(b) The Company shall have requested and caused the General Counsel of the Company to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form reasonably agreed to by the Representatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for to the Company, to furnish have furnished to the Representative its Representatives their opinion and 10b-5 statementletter, each dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex B heretoreasonably agreed to by the Representatives.
(cd) The Company Representatives shall have requested and caused received from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such their letter and opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representative Representatives may reasonably requirerequest, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chairman of the Board, Chief Executive Officer and (y) President or any Executive Vice President and the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Preliminary Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) At the Execution Time, the Representatives shall have received from PricewaterhouseCoopers LLP, independent registered public accountants for the Company, two letters, each dated the Execution Time addressed to the Underwriters, in form and substance satisfactory to the Representatives, with respect to the audited and unaudited financial statements and certain other financial information of the Company and ▇▇▇▇ ▇▇▇▇▇, Inc., respectively, contained or incorporated by reference in the Registration Statement and the Preliminary Prospectus.
(g) On the Closing Date, the Representatives shall have received from PricewaterhouseCoopers LLP, independent registered public accountants for the Company, two letters dated such date addressed to the Underwriters, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the applicable letter furnished by them pursuant to subsection (f) of this Section 6, except that the letters will refer to the Final Prospectus and the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
(h) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Accounting Officer of the Company, dated the Closing Date, in substantially the form reasonably agreed to by the Representatives.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement, the Preliminary Prospectus and the Final Prospectus (in each case, exclusive of any amendment or supplement thereto), there has shall not have been no Material Adverse Effect on (i) any change or decrease specified in the letter or letters referred to in paragraph (f) or (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package Preliminary Prospectus and the Final Prospectus (in each case, exclusive of any amendment or supplement thereto).
(hj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(gSection 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that either indicates a negative change or does not indicate the direction of the possible change.
(ik) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company promptly in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP , counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & Ellenoff ▇▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the General Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer Officers and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Effect, except as set forth in or contemplated in the General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that it has performed an audit of the financial statements of the Company for the period from January 1, 2021 (commencement of operations) through February 24, 2021 and a review of the financial statements of the Company for the period ended June 30, 2021, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change in, or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Securities shall be duly listed subject to notice of issuance on the NYSE, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Support Agreement.
(k) At least one (1) Business Day prior to the Effective Date, the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Apeiron Capital Investment Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇Group, in-house Cayman Islands counsel for the Company, to furnish have furnished to the Representative his opinion, its opinions dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex C heretoRepresentative.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to the best of their knowledge:that: Credit Suisse Securities (USA) LLC January 19, 2021
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have requested and caused Withum to have furnished to the Representative, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from August 31, 2020 (date of inception) through December 31, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. Credit Suisse Securities (USA) LLC January 19, 2021 References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) 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.
(j) The Securities shall be duly listed subject to notice of issuance on The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Credit Suisse Securities (USA) LLC January 19, 2021 The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (TZP Strategies Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates certificate pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇Day, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statementRepresentatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex B attached as Exhibit A hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in-house general counsel for the Company, to furnish have furnished to the Representative Representatives his opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex C attached as Exhibit B hereto.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ US LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) an Executive Vice President, and the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, Company dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageFinal Prospectus, the Final Prospectus Disclosure Package and any supplements or amendments thereto, as well as each electronic roadshow used to offer the Securities identified on Schedule V and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative lettersRepresentatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and the PCAOB and containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(gSection 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and and, subject to Section 11 hereof, all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ US LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Optional Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & K▇▇▇▇▇▇▇ and E▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statement, opinions dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentatives.
(c) The Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from P▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇LLP, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the its Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement and each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, and each road show used in connection with the Offering, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have requested and caused M▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from January 21, 2021 (inception) through February 4, 2021; provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this Section 7(f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fSection 7(f) of this Section 6 hereof or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) 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.
(j) The Offered Securities shall be duly listed subject to notice of issuance on Nasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 shall be delivered at the office of P▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at P▇▇▇ ▇▇▇▇▇▇▇▇ LLP, 5▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: J▇▇▇▇▇▇▇ ▇▇, unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its their obligations hereunder and to the following additional conditions:
(a) The Final If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statementRepresentatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex B hereto.attached hereto as Exhibit A.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ LLP, in-house tax counsel for the Company, to furnish have furnished to the Representative his Representatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex C hereto.attached hereto as Exhibit B.
(d) The Representative Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland corporate counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form attached hereto as Exhibit C.
(e) The Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, on behalf of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageProspectus, any supplements to the Prospectus, the Final Prospectus and any supplements or amendments thereto, Disclosure Package and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) the Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledgeKnowledge, threatened; and;
(iii) since the date of the most recent financial statements included in the Disclosure Package Prospectus, and the Final Prospectus (exclusive of any supplement thereto)document that is incorporated by reference therein, there has been no Material Adverse Effect material adverse effect on the condition (business, financial condition, results of operations, management, properties or otherwise), prospects, earnings, business or properties prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).Prospectus; and
(fiv) At they have carefully examined the Execution Time Disclosure Package and at the Prospectus and, in their opinion (A) as of the Closing Date, the Disclosure Package and the Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) since the Applicable Time, no event has occurred which should have been set forth in a supplement or amendment to the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused Ernst & Young LLP to furnish have furnished to the Representative lettersRepresentatives, at the Execution Time and at the Closing Date, a letter, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given or incorporated by reference in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (business, financial condition, results of operations, management, properties or otherwise), earnings, business or properties prospects of the Company and its subsidiaries Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(j) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Company shall have furnished to the Representatives a letter in the form of Exhibit D hereto from each director and executive officer of the Company named in the Registration Statement and the Prospectus. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇ Procter LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇Procter LLP, counsel for the Company, to furnish have furnished to the Representative its Representatives their opinion (including regulatory opinion) and 10b-5 statementnegative assurance letter, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially a a form reasonably acceptable to the form of Annex B heretoRepresentatives.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ ▇. & ▇▇▇▇▇▇▇▇ LLP, in-house intellectual property counsel for the Company, to furnish have furnished to the Representative his Representatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially a form reasonably acceptable to the form of Annex C heretoRepresentatives.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinionsand negative assurance letter, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ij) Prior The Securities shall have been listed and admitted and authorized for trading on the [●], and satisfactory evidence of such actions shall have been provided to the Closing DateRepresentatives.
(k) At the Execution Time, the Company shall have furnished to the Representative such further information, certificates Representatives a letter substantially in the form of Exhibit A hereto from each officer and documents as director of the Representative may reasonably requestCompany and substantially all holders of the Company’s securities addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, Shares shall be subject to the accuracy of the representations and warranties on the part of the Company in all material respects contained herein as of the Execution Time and the Closing Date and any settlement date pursuant to Section 3 hereofeach Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final ProspectusProspectus Supplement, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, Company to furnish have furnished to the Representative its opinion and 10b-5 statementits negative assurance letter, dated the Closing Date each Time of Delivery, and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused Erdinast, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇& Co., in-house Israeli counsel for the Company, Company to furnish have furnished to the Representative his its opinion, dated the Closing Date each Time of Delivery, and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex C heretoRepresentative.
(d) The Representative shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇, Glovsky and ▇▇▇▇▇, P.C., counsel for the Underwriters, such opinion or opinionsand negative assurance letter, dated the Closing Date each Time of Delivery and addressed to the Representative, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Pricing Disclosure Package, the Final Prospectus Supplement (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by the General Counsel of the Company, dated each Time of Delivery, regarding intellectual property statements contained in the Registration Statement, the Pricing Disclosure Package, the Final Prospectus Supplement, in the form acceptable to the Representative.
(xf) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Dateeach Time of Delivery, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Pricing Disclosure Package, the Final Prospectus Supplement and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Shares, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date such Time of Delivery with the same effect as if made on the Closing Date, such Time of Delivery and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Datesuch Time of Delivery;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Pricing Disclosure Package and the Final Prospectus Supplement (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Effect.
(fg) At the Execution Time and at the Closing Date, the The Company shall have requested and caused Ernst & Young LLP ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a member firm of KPMG International, to furnish have furnished to the Representative Representative, at the Execution Time and each Time of Delivery, letters, dated respectively as of the Execution Time and as of the Closing Date each Time of Delivery, in form and substance satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus Supplement (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Pricing Disclosure Package and the Final Prospectus Supplement (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to each Time of Delivery, the Closing DateCompany shall have furnished to the Representative a Secretary’s Certificate, in form and substance reasonably satisfactory to the Representative and customary for the type of offering contemplated by this Agreement.
(j) Prior to each Time of Delivery, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(k) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Representative. In addition, prior to the Closing Date, the Company shall have submitted an application to TASE for the listing of the Shares for trading thereon, and the Representative shall have received, on or prior to such date, evidence reasonably satisfactory to them of such submission. The approval in principle (or final approval) of the TASE for the listing of the Shares shall be obtained as soon as practicable following the Closing Date.
(l) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A hereto from each executive officer and director of the Company identified on Schedule IV hereto addressed to the Representative. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date respective Time of Delivery by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇Lovells US LLP, counsel for the Company, to furnish have furnished to the Representative its Representatives their opinion and 10b-5 statementletter, dated the Closing Date and addressed to the RepresentativeRepresentatives, substantially in substantially the form of Annex B heretoagreed by such counsel and the Underwriters.
(ci) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. Hall & ▇▇▇▇▇▇▇ LLP, in-house intellectual property counsel for the Company, to furnish have furnished to the Representative his Representatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, substantially in substantially the form of Annex C heretoagreed by such counsel and the Underwriters.
(ii) The Company shall have requested and caused ▇▇▇▇▇ Lovells US LLP, intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form agreed by such counsel and the Underwriters.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer principal executive officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Debt Securities and the Option Securities, as the case may be, shall be subject subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time date hereof and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company Company’s officers on and as of the Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time periods period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule 433433 under the Act shall have been made, and no such filings shall have been made without the consent of the Representatives; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatenedthreatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction.
(b) The Company Representatives shall have requested and caused be furnished with opinions, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President and General Counsel of the Company, substantially in the form included as Exhibit A, and ▇▇▇▇▇ Day, Chicago, Illinois, counsel for the Company, substantially in the form included as Exhibit B.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the CompanyNew York, to furnish to the Representative its opinion and 10b-5 statementNew York, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, opinions dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer President or any Vice President of the Company, dated the Closing Date, as to the matters set forth in paragraphs (a) and (g) of this Section 7 and to the further effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that that, to the best of their knowledgeknowledge after reasonable investigation:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;; and
(ii) there has been no stop order suspending change that results in a Material Adverse Effect whether or not arising in the effectiveness ordinary course of business, from that set forth or contemplated by the Registration Statement, the most recent Preliminary Prospectus or Prospectus.
(e) The Representatives shall have received letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the date of this Agreement and Closing Date, respectively, and in form and substance satisfactory to the Representatives) advising that (i) they are an independent registered public accounting firm with respect to the Company as required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion, the consolidated financial statements and supplemental schedules included or incorporated by reference in the Registration Statement Statement, Preliminary Prospectus or any notice objecting Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to its use has been issued form in all material respects with the applicable accounting requirements of the Exchange Act and no proceedings for that purpose have been instituted orthe published rules and regulations of the Commission thereunder, to the Company’s knowledge, threatened; and
(iii) that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholder of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Preliminary Prospectus or Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that: (A) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, Preliminary Prospectus or Prospectus for them to be in conformity with generally accepted accounting principles or any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, Preliminary Prospectus or Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Preliminary Prospectus or Prospectus and except as set forth in or contemplated by the Final Registration Statement, Preliminary Prospectus (exclusive of any supplement thereto)or Prospectus, there has been no Material Adverse Effect were any changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock of the Company, increases in long-term debt or decreases in stockholder’s equity or net current assets of the Company, on a consolidated basis, as compared with the amounts shown on the condition (most recent consolidated balance sheet included or incorporated in the Preliminary Prospectus or Prospectus, or for the period from the date of the most recent financial statements included or otherwise)incorporated by reference in the Preliminary Prospectus or the Prospectus to such specified date there were any decreases, prospectsas compared with the corresponding period in the preceding year, earningsin operating revenues, business operating income or properties net income of the Company and its subsidiaries, taken as a whole, whether except in all instances for changes or not arising from transactions in the ordinary course of business, except as decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or contemplated incorporated by reference in the Disclosure Package Registration Statement, Preliminary Prospectus and Prospectus with indicated amounts in the Final Prospectus financial statements or accounting records of the Company and (exclusive excluding any questions of any supplement thereto)legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) At Subsequent to the Execution Time execution and at delivery of this Agreement, no downgrading shall have occurred in the Closing Date, rating accorded the Debt Securities or any other debt securities or preferred stock of or guaranteed by the Company shall have requested and caused Ernst & Young LLP to furnish to by any “nationally recognized statistical rating organization,” as such term is defined by the Representative letters, dated respectively as Commission for purposes of Rule 436(g)(2) under the Execution Time and as of the Closing Date in form and substance satisfactory to the RepresentativeAct.
(g) Subsequent to Neither the Execution Time or, if earlier, Company nor any of its subsidiaries (i) shall have sustained since the dates most recent date as of which information is given in the Pricing Disclosure Package (exclusive and the Prospectus and up to the Closing Date any loss or interference with its business that has resulted in a Material Adverse Effect from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or action, order or decree of any amendment thereof) court, arbitrator or governmental or regulatory authority, and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) shall have incurred since the date of this Agreement, any changeliabilities or obligations, direct or any development involving a prospective changecontingent, in or affecting the condition (financial or otherwise), earnings, business or properties of which are material to the Company and its subsidiaries taken as a whole, whether or and there shall not arising from transactions have been any change in the ordinary course capital stock or long-term debt of business, except the Company on a consolidated basis or any change that results in a Material Adverse Effect otherwise than as set forth in or contemplated in the Disclosure Package most recent Preliminary Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto)Prospectus, the effect of which, in any such case referred to described in clause (i) or (ii) above, is, above is in the sole judgment of the Representative, Underwriters so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering offering, sale or the delivery of the Securities as Bonds on the terms and in the manner contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package this Agreement and the Final Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(h) Subsequent to the Execution Time, there No action shall not have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any decrease in federal, state or foreign governmental or regulatory authority that would, as of the rating Closing Date, prevent the issuance or sale of the Debt Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under Closing Date, prevent the Act) issuance or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction sale of the possible changeDebt Securities.
(i) Prior The Company and Trustee shall have entered into the supplemental Indenture relating to the Closing DateDebt Securities, and the Representatives shall have received counterparts, conformed as executed thereof, and the Debt Securities shall have been duly executed and delivered by the Company shall have furnished to and authenticated by the Representative such further information, certificates and documents as the Representative may reasonably requestTrustee. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriterstheir counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing writing, or by telephone or facsimile telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Northern States Power Co /Wi/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Securities Act shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to furnish have furnished to the Representative its Representatives their opinion and 10b-5 statementnegative assurance letter, dated the Closing Date and addressed to the RepresentativeRepresentatives, substantially in substantially the form of Annex B Exhibit A hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇. ▇▇▇▇, in-house Panamanian counsel for the Company, to furnish have furnished to the Representative his opinionRepresentatives their opinion and negative assurance letter, dated the Closing Date and addressed to the RepresentativeRepresentatives, substantially in substantially the form of Annex C Exhibit B hereto.
(d) The Representative Company shall have requested and caused Mayora & Mayora S.C., Guatemalan counsel for the Company, to have furnished to the Representatives their opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives, substantially in the form of Exhibit C hereto.
(e) The Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ef) The Representatives shall have received from Consortium Centro América Abogados, Guatemalan counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer Chairman of the Board of Directors of the Company or the chief executive officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, and this Agreement and that to as well as each electronic road show used in connection with the best of their knowledge:
(i) the representations and warranties offering of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included Securities substantially in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken form attached as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Exhibit D hereto.
(fh) At The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the SEC thereunder substantially in the form and substance satisfactory of Exhibit E hereto (except that, in any letter dated a Closing Date, the specified date referred to the Representativein Exhibit E hereto shall be a date no more than three days prior to such Closing Date).
(gi) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hj) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) Subsequent to the Execution Time, there shall not have been (i) any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(il) Prior The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit F hereto from each person listed in Exhibit H hereto.
(n) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any Panamanian, Guatemalan, U.S. or other regulatory authority that would, as of the Closing Date, prevent the sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of such Closing Date, prevent the sale of the Securities.
(o) On or prior to any Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates (including incumbency certificates) and documents as the Representative Representatives may reasonably requestrequest in connection with this Agreement. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The Representatives may in their discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Winston & S▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇LLP, counsel for the Company, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statement, opinions (including negative assurance statements) dated the Closing Date and addressed to the Representative, Representatives in substantially form and substance acceptable to the form of Annex B heretoRepresentatives.
(c) The Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ ▇. ▇▇▇▇LLP, in-house counsel for the CompanyUnderwriters, to furnish to the Representative his opinionsuch opinion or opinions and negative assurance letter, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (xi) each of the Co-Executive Chairmen and the Vice Chairman of the Company and (ii) the Chief Executive Officer and (y) the Chief Financial Officer Secretary of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period April 30, 2018 (inception) through May 10, 2018, provided that the cutoff date shall not be more than two Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution Time, there FINRA shall not have been raised any decrease in objection with respect to the rating of any fairness or reasonableness of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) underwriting or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction other arrangements of the possible changetransactions contemplated hereby.
(ij) Prior The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreements, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement and the Insider Letters.
(l) At least one (1) Business Day prior to the Closing Date, the Company Sponsor shall have furnished caused certain proceeds from the sale of the Private Placement Warrants to be deposited into the Representative such further informationTrust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, certificates and documents as the Representative may reasonably requestno proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at 450 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇nless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Company, to furnish have furnished to the Representative Representatives its opinion and 10b-5 statementopinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, in form and substance reasonably satisfactory to the Representatives, substantially in the form of Annex B forms set forth on Exhibits B-1 through B-3 hereto.
(c) The Company Representatives shall have requested and caused ▇received from ▇▇▇▇▇ ▇. ▇▇▇▇▇ L.L.P., in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Package and Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer or President and (y) the Chief Financial Officer or Chief Accounting Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Package and Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives at the Execution Time a certificate, signed by the Chief Financial Officer substantially in the form set forth on Exhibit C hereto.
(f) On the date hereof, the Underwriters shall have received from each of Ernst & Young LLP, UHY LLP and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. a “comfort letter” dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives, covering the financial information contained, or incorporated by reference, in the Registration Statement and Preliminary Prospectus and other customary matters. In addition, on the Closing Date, the Underwriters shall have received from such accountants a “bring-down comfort letter” dated the Closing Date addressed to the Underwriters, in form and substance satisfactory to the Representatives, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial information in the Registration Statement and the Prospectus and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than three (3) days prior to the Closing Date.
(g) On the date hereof, the Underwriters shall have received from CGA, independent petroleum engineers, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives, covering the oil and gas reserves information in the Registration Statement and Preliminary Prospectus and other customary matters. In addition, on the Closing Date, the Underwriters shall have received from such independent petroleum engineers a “bring-down comfort letter” dated the Closing Date addressed to the Underwriters, in form and substance satisfactory to the Representatives, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the oil and gas reserves information in the Registration Statement and the Prospectus and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than three (3) days prior to the Closing Date.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease in the customary level of comfort provided in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, Parties taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ij) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further customary information, certificates and documents as the Representative Representatives may reasonably request.
(k) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and reasonably satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each Apollo Entity that owns Common Stock addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at One Shell Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, thereto have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ , ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Company, to furnish to the Representative its opinion Company and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for General Counsel of the Company, Company to furnish have furnished to the Representative his opinionRepresentatives their opinions substantially in the forms set forth in Exhibit D and E hereto, respectively, dated the Closing Date and any settlement date and addressed to the Representative, in substantially the form of Annex C heretoRepresentatives.
(dc) The Representative Representatives shall have received from the firm listed in the underwriting agreement as Shearman & Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer Chairman of the Board or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, thereto and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date and any settlement date with the same effect as if made on the Closing Date, Date and any settlement date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing DateDate and any settlement date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Effect.
(fe) At the Execution Time and at time of the Closing Dateexecution of this Agreement, the Company Representatives shall have requested and caused Ernst & Young received from BDO ▇▇▇▇▇▇▇, LLP to furnish to the Representative lettersa letter dated such date, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the RepresentativeRepresentatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Final Prospectus.
(f) At Closing Date, the Representatives shall have received from BDO ▇▇▇▇▇▇▇, LLP a letter, dated as of Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Date.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing DateDate and any settlement date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(h) The Company shall have filed the Certificate of Designation with the Delaware Secretary of State.
(i) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A to this Agreement from each officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling, LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Base Securities and the Option Over-Allotment Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ , Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in a form reasonably acceptable to the Representative.
(c) The Representative shall have received from White & Case LLP, counsel for the Underwriters, its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representativeany settlement date, in substantially the form of Annex B hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇as applicable, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially a form reasonably acceptable to the form of Annex C heretoRepresentative.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the its Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Packageeach Preliminary Prospectus, the Final Prospectus and any supplements amendment or amendments supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date;
(ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date;
(iiiii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiiiv) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused ▇▇▇▇▇▇ to have furnished to the Representative, at the Execution Time and at the Closing Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the Representative.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), prospects, earnings, business ) or properties prospects of the Company and its subsidiaries, taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offering Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) 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.
(i) The Offering Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(j) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Public Warrant Agreement, the Private Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Anchor Securities Purchase Agreements and the Registration Rights Agreement. By the Closing Date, the Company shall have delivered to the Representative an executed copy of the Administrative Services Agreement. With regard to the Insider Letter, if any additional persons shall become executive officers, directors or advisors of the Company prior to the end of the 180-day restricted period referred to in Section 6(h), the Company shall cause each such person, prior to or contemporaneously with their appointment or election as an executive officer, director and director nominee to execute and deliver to the Representative the Insider Letter.
(k) The Sponsor (at least one Business Day prior to the Effective Date) shall have caused such portion of the purchase price for the Private Placement Warrants to be deposited into the Trust Account so that together with the net proceeds for the Base Securities (including the Deferred Discount), or with respect to the Over-Allotment Securities, the net proceeds from the Over-Allotment Securities (including the Deferred Discount), the Trust Account would equal the product of the number of Units sold and the public offering price per Unit as set forth on the cover of the Prospectus. Notwithstanding the foregoing, in no event will the Company take any action that would result in the Company receiving proceeds from the sale of the Private Placement Warrants in excess of the sum of: (i) the amount required to satisfy the obligation in the immediately preceding sentence; (ii) the amount of the discount from the public offering price represented by the purchase price set forth in Schedule II of this Agreement and (iii) the amount of money to be held by the Company outside of the Trust Account, as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 and, if applicable, the last sentence of Section 4(d), shall be delivered at the office of White & Case LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 1 contract
Sources: Underwriting Agreement (Trajectory Alpha Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statement, opinions dated the Closing Date or the settlement date, as the case may be, and addressed to the Representative, in substantially a form reasonably satisfactory to the form of Annex B heretoRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or the settlement date, as the case may be, and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing DateDate or the settlement date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of businessEffect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(fe) At The Company shall have requested and caused Withum to have furnished to the Representative, at the Execution Time and at the Closing DateDate or the settlement date, as the Company shall have requested and caused Ernst & Young LLP to furnish to the Representative case may be, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period October 2, 2020 (inception) through [●], 2021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) ), the Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company and its subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ig) Prior to the Closing DateDate or the settlement date, as the case may be, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) On or prior to the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network from the Company, in form and substance satisfactory to the Representative, along with such additional supporting documentation as the Representative have requested in connection with the verification of the foregoing certificate.
(i) 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.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Sponsor Warrant Purchase Agreement, the RBC Warrant Purchase Agreement, the Insider Letter, the Registration Rights Agreement and the Services Agreement.
(l) At least one Business Day prior to the Closing Date or the settlement date, as the case may be, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be wired to the Company and the Company shall direct the trustee to deposit such funds into the Trust Account and to hold such funds in the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or settlement date shall equal the product of the number of Units sold in the Offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or the settlement date, as the case may be, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & and ▇▇▇▇▇▇▇▇, LLP, counsel for the Company, to furnish have furnished to the Representative its opinion and 10b-5 statementRepresentatives their opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, to the effect and in substantially a form satisfactory to the form of Annex B heretoUnderwriters and counsel for the Underwriters.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the General Counsel of the Company, to furnish have furnished to the Representative his Representatives her opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, to the effect and in substantially a form satisfactory to the form of Annex C heretoUnderwriters and counsel for the Underwriters.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer Chairman of the Board or the President and (y) the Chief Financial Officer principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, filed with the Commission on or prior to the date of such certificate, as well as each electronic road show prepared by the Company used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement that are not qualified by materiality are true and correct in all material respects, and that representations and warranties of the Company in this Agreement that are qualified by materiality are true and correct, in each case, on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) At On the Execution Time and at the Closing Datedate hereof, the Company Representatives shall have requested and caused Ernst received from Deloitte & Young LLP to furnish Touche LLP, independent registered public accountants for the Company, a letter dated the date hereof addressed to the Representative lettersUnderwriters, dated respectively as of the Execution Time and as of the Closing Date in form and substance satisfactory to the RepresentativeRepresentatives with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Final Prospectus.
(g) On the Closing Date, the Representatives shall have received from Deloitte & Touche LLP, independent registered 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 (f) of this Section 6, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ij) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably requestrequest for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, on the Closing Date, or by electronic means.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and any settlement date pursuant to Section 3 hereofas of the Closing Date, to the accuracy of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and or any supplement thereto, shall have been filed in the manner and within the time period required by under Rule 424(b); , and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Issuer Free Writing Prospectus shall have been filed with in the Commission manner and within the applicable time periods prescribed for such filings period required by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to that would prevent its use use, shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Company Representatives shall have requested and caused received from G▇▇▇▇▇ ▇, D▇▇▇ & C▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish to at the Representative its request of the Company, an opinion or opinions and 10b-5 statement, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representative, in substantially the form of Annex B heretoRepresentatives.
(c) The Company Representatives shall have requested and caused ▇▇received from Cravath, Swaine & M▇▇▇▇ ▇. ▇▇▇▇LLP, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinionsopinions and 10b-5 statement, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersRepresentatives.
(ed) The Company shall have furnished to the Representative Representatives a certificate signed by an officer of the Company, signed by (x) Company reasonably acceptable to the Chief Executive Officer and (y) the Chief Financial Officer of the CompanyRepresentatives, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and this Agreement and that to the best of their knowledgeeffect:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, in each case, unless otherwise waived by the Representatives;
(ii) no stop order suspending the effectiveness of the Registration Statement Statement, as amended, or any notice objecting to that would prevent its use has been issued and no proceedings for that purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Package, there has been no Material Adverse Effect on material adverse change in the condition (financial or otherwise), prospectscondition, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(fe) At On the Execution Time date of this Agreement and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish shall have furnished to the Representative letters, Representatives a letter or letters dated respectively as of the Execution Time and as of the Closing Date such respective delivery date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Final Prospectus; provided, that the letters delivered shall use a “cut-off” date no more than three business days prior to each respective delivery date.
(gf) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto)Registration Statement, there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement theretoon or after the Execution Time), there shall not have been (i) any material change in the capital stock (other than upon exercise of outstanding stock options) or any significant increase in long-term debt of the Company or its subsidiaries, taken as a whole or (ii) any material adverse change, or any development involving a prospective material adverse change, in or affecting the financial condition, earnings, business or properties of the Company and its subsidiaries, taken as a whole, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering public offering, sale or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus Prospectus.
(exclusive of any amendment or supplement thereto)g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating ratings of any of the Company’s Securities or any other debt securities issued or guaranteed by the Company by Moody’s or S&P and neither Moody’s nor S&P shall have publicly announced that it has placed any “nationally recognized statistical rating organization” (of such securities under surveillance or review, or has changed its outlook with respect thereto, with negative implications, except as defined for purposes of Rule 436(g) under disclosed prior to the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changeExecution Time.
(i) Prior to the Closing Date, the Company The Securities shall have furnished to the Representative such further information, certificates be eligible for clearance and documents as the Representative may reasonably requestsettlement through DTC. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled terminated at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation termination shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Hp Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Applicable Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereof, and any other 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 periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Faegre Drinker ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to furnish have furnished to the Representative its Representatives their opinion and 10b-5 statement, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex B heretoforms agreed to prior to the date hereof.
(c) The Company shall have requested and caused ▇▇its General Counsel, ▇▇▇▇ ▇. ▇▇▇▇, in-house counsel for the Company▇▇, to furnish have furnished to the Representative Representatives his opinion, dated the Closing Date and addressed to the RepresentativeRepresentatives, in substantially the form of Annex C heretoagreed to prior to the date hereof.
(d) The Representative Representatives shall have received from the firm listed in the underwriting agreement as ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by (x) the Chief Executive Officer and (y) the Chief Financial Officer and the General Counsel of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that to the best of their knowledgethat:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent consolidated financial statements of the Company included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect on material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise)business, business prospects, earnings, business financial condition or properties results of operations of the Company and its subsidiaries, taken subsidiaries considered as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement theretoamendments or supplements thereto after the date hereof).
(f) At the Execution Time date hereof and at the Closing Date, the Company shall have requested and caused Ernst & Young PricewaterhouseCoopers LLP to furnish to the Representative Representatives letters, dated respectively as of the Execution Time date hereof and as of the Closing Date Date, in form and substance satisfactory to the RepresentativeRepresentatives of the type described in PCAOB Statement on Auditing Standards AS 6101.
(g) At the date hereof and at the Closing Date, the Company shall have furnished to each Representative a certificate addressed to each Representative of its Chief Financial Officer with respect to certain financial data contained in the Disclosure Package and the Final Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to each Representative.
(h) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (fSection 6(f) of this Section 6 hereof or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earningsbusiness, business prospects, financial condition or properties results of operations of the Company and its subsidiaries taken considered as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), ) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent Except as set forth in the Disclosure Package, subsequent to the Execution Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes in Section 3(a)(62) of Rule 436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ij) The Securities shall be eligible for clearance and settlement through DTC.
(k) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the underwriters’ counsel set forth in the Underwriting AgreementUnderwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Zimmer Biomet Holdings, Inc.)