Appears in 4 contracts

Sources: Underwriting Agreement (Gores Holdings VI, Inc.), Underwriting Agreement (Gores Holdings VI, Inc.), Underwriting Agreement (Gores Holdings VI, Inc.)

Appears in 4 contracts

Sources: Underwriting Agreement (Warburg Pincus Capital Corp I-B), Underwriting Agreement (Warburg Pincus Capital Corp I-A), Underwriting Agreement (Warburg Pincus Capital Corp I-A)

Appears in 4 contracts

Sources: Underwriting Agreement (Trinity Merger Corp.), Underwriting Agreement (Trinity Merger Corp.), Underwriting Agreement (Trinity Merger Corp.)

Appears in 4 contracts

Sources: Underwriting Agreement (Oaktree Acquisition Corp. III), Underwriting Agreement (Oaktree Acquisition Corp. III), Underwriting Agreement (Oaktree Acquisition Corp. III)

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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 its opinions ~~and negative assurance letter, each~~ 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 Company shall have requested and caused Ogier, 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 ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or 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: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, 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 29, 2020 (date of inception) through July 24, 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. (fg) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) 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. (ij) 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. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ 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. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or a settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust ~~Account~~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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 4 contracts

Sources: Underwriting Agreement (Kismet Acquisition Three Corp.), Underwriting Agreement (Kismet Acquisition Two Corp.), Underwriting Agreement (Kismet Acquisition Two Corp.)

Appears in 4 contracts

Sources: Underwriting Agreement (TPG Pace Tech Opportunities Corp.), Underwriting Agreement (TPG Pace Beneficial Finance Corp.), Underwriting Agreement (TPG Pace Tech Opportunities 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands 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. (d) The Representative shall have received from ~~Ropes~~ Skadden, Arps, Slate, M▇▇▇▇▇▇ & ▇F▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or 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: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, 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 29, 2020 (date of inception) through July 24, 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 letterRepresentative. (fg) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) 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. (ij) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Administrative Services Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or a settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust ~~Account~~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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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 ~~Ropes~~ Skadden, Arps, Slate, M▇▇▇▇▇▇ & ▇F▇▇▇ LLP, counsel for the Underwriters, at 5▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇~~▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇~~▇▇▇, Attention: G▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 3 contracts

Sources: Underwriting Agreement (JAWS Spitfire Acquisition Corp), Underwriting Agreement (Horizon Acquisition Corp II), Underwriting Agreement (Horizon 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 its ~~opinions~~ opinion and ~~negative assurance letter, each~~ 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 Company shall have requested and caused ▇▇▇▇▇▇ 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 ~~Ropes~~ White & ~~▇▇▇▇~~ Case LLP, counsel for the Underwriters, such ~~opinion or~~ opinions and ~~negative assurance letter~~10b-5 statement, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, ~~with respect~~ in a form reasonably acceptable to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such mattersRepresentatives. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or 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: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, 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 29, 2020 (date of inception) through July 24, 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. (fg) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the Representatives may reasonably request. (hi) 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. (ij) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription ~~Agreement and~~ Agreement, the Insider Letter, the Administrative Services Agreement, the Registration and Shareholder Rights Agreement and the Forward Purchase Agreement. On With regard to the Insider Letter, if any additional persons shall become executive officers, directors, director nominees or advisory board members of the Company prior to the ~~Closing Date~~end of the 180-day restricted period referred to in Section 6(h), the Company ~~will~~ 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 ~~Representatives executed copies of the Trust Agreement, the Warrant Agreement,~~ Representative the Insider ~~Letters and the Registration Rights Agreement~~Letter. (kl) At The Sponsor (at least one Business Day prior to the ~~Closing~~ Effective Date~~, the Sponsor~~ ) shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust ~~Account~~Account so that together with the net proceeds for the Firm Securities (including the Deferred Discount), or with respect to the Option 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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 ~~Ropes~~ White & ~~▇▇▇▇~~ Case LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇~~▇ ▇▇▇▇~~▇, ~~Attention: ▇▇▇▇ ▇.~~ ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 3 contracts

Sources: Underwriting Agreement (Pontem Corp), Underwriting Agreement (Pontem Corp), Underwriting Agreement (Pontem 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,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date~~in this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Offered Notes: (a) ~~The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ 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~~ instituted, or to the knowledge of the Company threatened, by the Commission. (b) ~~The~~ Counsel to each of the Company and the Issuer (who shall ~~have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for~~ be satisfactory to the ~~Company, to~~ Representative) shall have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative an opinion or opinions, ~~each~~ dated the Closing ~~Date~~ Date, in each case in form and ~~addressed~~ substance reasonably satisfactory to the ~~Representatives~~Representative, ~~in a form reasonably acceptable~~ relating to ~~the Representatives~~certain enforceability, securities law and security interest matters. (c) In-house counsel for the Company shall have furnished to the Representative an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representative. (d) The ~~Representatives~~ Representative shall have received from ~~Ropes & ▇▇▇▇ LLP~~[___], counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the related Closing ~~Date and addressed to the Representatives~~Date, with respect to the issuance and sale of the ~~Securities~~Offered Notes, the Registration Statement, the ~~Statutory Prospectus, the~~ Prospectus ~~(together with any supplement thereto)~~ and such other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as ~~they~~ the Representative may reasonably request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the ~~Chief Executive Officer and~~ President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary Prospectus,~~ Program Documents to which the ~~Prospectus and any amendment or supplement thereto~~Company is a party, and ~~this Agreement and~~ that~~: (i)~~ , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and Program Documents to which the Company is a party are true and correct ~~on and as of the Closing Date with the same effect as if made on the Closing Date~~ in all material respects, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) ~~The Company~~ Counsel for the Indenture Trustee (who shall ~~have requested and caused KPMG~~ be satisfactory to the Representative) shall have furnished to the ~~Representatives, at the Execution Time and at the Closing Date, letters~~Representative an opinion, dated ~~respectively as of the Execution Time and as of~~ the Closing Date, in form and substance reasonably satisfactory to the ~~Representatives, confirming that they are a registered public accounting firm that is independent with respect~~ Representative. (g) Counsel for the Owner Trustee (who shall be satisfactory to the ~~Company within~~ Representative) shall have furnished to the ~~meaning of~~ Representative an opinion, dated 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 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, ~~as applicable~~in form and substance reasonably satisfactory to the Representative. (h) Counsel for the Company (who shall be satisfactory to the Representative) shall have furnished to the Representative an opinion, dated the Closing Date, in form and ~~stating in effect that:~~substance reasonably satisfactory to the Representative, relating to certain insolvency and bankruptcy matters and federal income tax matters. (i) ~~in their opinion~~ The Representative shall have received a letter, dated the ~~audited financial statements~~ Closing Date or such other date as may be agreed upon between the Representative 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~~ from certified public accountants (who shall be satisfactory to the ~~Prospectus~~ Representative), substantially in ~~this paragraph (e) include any supplement thereto at~~ the ~~date of~~ form previously approved by the ~~letter~~Representative. (fj) ~~Subsequent to~~ The Offered Notes shall have received 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 ratings 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Prospectus. (gk) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Underwriter such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hl) ~~FINRA shall not have raised any objection with respect~~ Subsequent to the ~~fairness or reasonableness~~ date 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~~Prospectus, 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 there shall not have been ~~fulfilled when and as provided~~ any material adverse change in ~~this Agreement,~~ the business or ~~if any~~ properties of the ~~opinions~~Company which in the Representative’s reasonable judgment, ~~negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to~~ after consultation with the ~~Representatives and counsel for~~ Company, materially impairs the ~~Underwriters, this Agreement and all obligations~~ investment quality of the ~~Underwriters hereunder may be canceled at,~~ Offered Notes so as to make it impractical or ~~at any time prior to,~~ inadvisable to proceed with the ~~Closing Date~~ public offering or the delivery of such Offered Notes as contemplated by the Representatives. 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, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateProspectus.

Appears in 3 contracts

Sources: Underwriting Agreement (Higher Education Funding I), Underwriting Agreement (Higher Education Funding I), Underwriting Agreement (Higher Education Funding I)

Appears in 3 contracts

Sources: Underwriting Agreement (Leo Holdings Corp. II), Underwriting Agreement (Leo Holdings Corp. II), Underwriting Agreement (Leo Holdings Corp. 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, the Closing Date and any ~~Option Closing 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~~ hereunder, including, if applicable, the last sentence of Section 3(b) hereof, and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 & ▇▇▇▇▇▇~~ DLA Piper LLP, U.S. counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Company shall have requested and caused [•], counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (d) The Representatives shall have received from ~~Ropes & ▇▇▇▇~~ Proskauer Rose LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, 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. (de) 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 Chief Executive Officer of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief 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 each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect~~, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~. (eg) The Company shall have requested and caused ~~KPMG~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 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 29~~[•], ~~2020~~ 2021 (date of inception) through ~~July 24~~[•], ~~2020~~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 (eg) include any supplement thereto at the date of the letter. (fh) 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 (eg) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, ~~except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~ the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents customary for transactions contemplated hereby as the Representatives may reasonably request. (hj) 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. (ik) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the Representatives. (jl) On the ~~Effective Date~~date hereof, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider ~~Letters~~ Letters, the Administrative Services Agreement and the Registration Rights Agreement. (km) At least one Business Day prior to the Closing ~~Date~~Date or the settlement date, as applicable, the Sponsor shall have caused the ~~purchase price for the~~ Private Placement ~~Warrants~~ Portion to be deposited into the Trust ~~Account~~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 public 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. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 remotely by electronic exchange of documents or at the office of ~~Ropes & ▇▇▇▇~~ Proskauer Rose LLP, counsel for the Underwriters, at ▇▇▇▇▇▇ ▇▇▇▇▇▇ ~~▇▇ ▇▇▇ ▇▇~~▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.

Appears in 3 contracts

Sources: Underwriting Agreement (Navigation Capital Acquisition IX Corp.), Underwriting Agreement (Navigation Capital Acquisition VIII Corp.), Underwriting Agreement (Navigation Capital Acquisition VI 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The Representatives shall have requested and received from ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the 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 Statement and each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each road show used in connection with the Offering, and this Agreement and that: (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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 ~~KPMG~~ ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, 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 29~~August 14, 2020 (~~date of~~ inception) through ~~July~~ August 24, 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~~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 ~~paragraph (e~~Section 7(e) ~~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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the 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 Offered Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription ~~Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant~~ Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing ~~Date~~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 Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 ~~Representatives~~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 ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇~~▇ ▇▇▇~~ , ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ and P. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date and any settlement date, as applicable.

Appears in 3 contracts

Sources: Underwriting Agreement (Cascade Acquisition Corp), Underwriting Agreement (Cascade Acquisition Corp), Underwriting Agreement (Cascade 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 addressed to the Representative in form and substance satisfactory to the Representative. (c) The Company shall have requested and caused Ogier, British Virgin Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in form and substance satisfactory to the Representative. (d) The Representative shall have received from Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the ~~Company~~Underwriters, ~~to have furnished to the Representatives its opinions and negative assurance letter~~such opinion or opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief Executive Officer and the 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 Statement each Preliminary Prospectus, 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 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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) 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 ~~KPMG~~ ▇▇▇▇▇▇ to have furnished to the ~~Representatives~~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 ~~Representatives~~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 29~~January 14, ~~2020~~ 2015 (~~date of~~ inception) ~~through July 24~~to January 20, ~~2020~~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~~; 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; 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 (eg) include any supplement thereto at the date of the letter. (fh) 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 (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, ~~business, management, properties, assets, rights, operations, condition (financial~~ business or ~~otherwise) or prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hj) 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. (ik) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq~~ NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jl) On the ~~Effective~~ Closing Date, the Company shall have delivered to the ~~Representatives~~ Representative executed copies of the ~~Securities Assignment~~ Trust Agreement, the Founder’s Purchase Agreement, the ~~Warrant~~ Subscription Agreement and ~~the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies~~ each of the ~~Trust Agreement, the Warrant Agreement, the~~ Insider ~~Letters and the Registration Rights Agreement~~Letters. (km) 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 ~~Warrants~~ Shares to be ~~deposited into~~ funded to the Company and the remainder to be funded to the Trust Account. (ln) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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~~ Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ~~▇▇ ▇▇▇ ▇▇~~▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇~~▇ ▇▇▇▇~~▇, ~~Attention: ▇▇▇▇ ▇.~~ ▇▇▇▇▇, 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 Securities and ~~the~~ any 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 Manager contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager 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~~ At the Closing Date, the Representatives shall have ~~requested~~ received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP and ~~caused Weil, Gotshal~~ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the ~~Company~~Company and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to ~~have furnished~~ the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the ~~Representatives its opinions~~ extent they deem proper, on certificates of responsible officers of the Company and ~~negative assurance letter, each dated~~ public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing ~~Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives~~Date. (c) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the 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 each Preliminary Prospectus~~Statement, the Disclosure Package, the Final Prospectus and any ~~amendment~~ supplements or ~~supplement~~ amendments 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 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 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 ~~Statutory Prospectus~~ 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has 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 the representations and warranties of the Manager 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. (f) The Company shall have requested and caused ~~KPMG~~ Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, ~~letters~~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 a registered public accounting firm that is independent~~ containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters 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 and certain financial information of the Company ~~for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time~~ and LNR contained or ~~Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included~~ incorporated by reference in the Registration Statement, the ~~Statutory Prospectus~~ 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 Statutory Prospectus and the Final 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. (fg) 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 Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) 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 ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ 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 Representatives, 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (gh) 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. (hi) ~~FINRA shall not have raised any objection with respect~~ Prior to the ~~fairness or reasonableness~~ Closing Date, the shares of Common Stock issuable upon conversion of the ~~underwriting or other arrangements~~ Securities shall have been listed and admitted and authorized for trading on the NYSE, subject only to notice of ~~the transactions contemplated hereby~~issuance. (j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit C hereto from (i) ~~The Securities shall be duly listed subject to notice~~ each officer and director of ~~issuance on~~ the ~~Nasdaq Capital Market~~Company (other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇), ~~satisfactory evidence~~ (ii) each officer of ~~which shall have been provided~~ the Manager, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇ ▇▇▇▇, and (iii) SPT Investment, LLC, in each case addressed to the Representatives. (jk) On At the ~~Effective Date~~Execution Time, the Company shall have ~~delivered~~ furnished to the Representatives ~~executed copies~~ a letter substantially in the form of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: Exhibit D hereto from (i) ~~a certificate signed by~~ the ~~Chief Executive Officer~~ Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) ~~opinions and negative assurance letter of Weil, Gotshal &~~ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date▇▇, in ~~form and substance satisfactory~~ each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ~~▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇~~Four Times Square, ~~▇▇▇ ▇▇▇▇~~New York, ~~▇▇▇ ▇▇▇▇ ▇▇▇▇▇~~New York, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein~~10036-6522, on the Closing Date.

Appears in 2 contracts

Sources: Underwriting Agreement (Starwood Property Trust, Inc.), Underwriting Agreement (Starwood Property Trust, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten ~~Securities~~ Units and the Option ~~Securities~~Units, 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative, in a form satisfactory to the Representative. (d) The Representative shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief ~~Executive~~ Financial Officer ~~and the principal financial or accounting officer~~ of the Company, dated the Closing Date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) 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 ~~KPMG~~ Withum to have furnished to the ~~Representatives~~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 ~~Representatives~~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 ~~June 29~~September 24, 2020 (date of inception) through ~~July 24~~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 (ef) include any supplement thereto at the date of the letter. (fh) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hj) 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. (ik) 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~~Representative. (jl) On or prior to the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Placement Unit Subscription Agreement, Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Administrative Services Agreement. (km) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement ~~Warrants~~ Units to be deposited into the Trust ~~Account~~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. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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, 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives,~~ Representative in a form ~~reasonably~~ and substance acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in form and substance acceptable to the Representative. (d) The Representative shall have received from ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have furnished to the Representative 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 ~~KPMG~~ Withum to have furnished to the ~~Representatives~~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 ~~Representatives~~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~~ an audit of the ~~audited~~ financial statements of the Company for the period ~~from June~~ November 29, ~~2020~~ 2017 (~~date of~~ inception) through ~~July 24~~December 31, ~~2020~~2017, provided that the cutoff date shall not be more than two ~~business days~~ 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; and (iii) statements as to such other matters incident to the transaction contemplated hereby as the Representative may reasonably request. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter. (fh) 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 (eg) 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 ~~prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any 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~~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. (ij) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) ~~On the Effective Date, the~~ The Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative (i) executed copies of the Trust Agreement, the Warrant Agreement, the ~~Insider Letters and the~~ Registration Rights Agreement, the Services Agreement and the Insider Letters on the Closing Date and (ii) executed copies of the Founder’s Purchase Agreement and the Private Placement Warrants Purchase Agreement on the Effective Date. (kl) At least one (1) 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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇~~, Attention:~~ ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Sources: Underwriting Agreement (Leo Holdings Corp.), Underwriting Agreement (Leo Holdings 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,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date~~in this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Note Offering: (a) ~~The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ 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~~ instituted, or ~~threatened~~to the knowledge of the Company, threatened by the Commission. (b) ~~The Company~~ Counsel to each of the Company, GE Capital and the Issuer (who shall be satisfactory to the Representatives) shall have ~~requested~~ furnished to the Representatives an opinion or opinions, dated the Closing Date, in each case in form and ~~caused Weil~~substance reasonably satisfactory to the Representatives and counsel for the Representatives, ~~Gotshal &~~ relating to certain enforceability, securities law and security interest matters. c) In-house counsel for each of the Company and GE Capital shall have furnished to the Representatives an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and counsel for the Representatives. d) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the ~~Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the~~ Representatives~~, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters~~, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing ~~Date and addressed to the Representatives~~Date, with respect to the issuance and sale of the ~~Securities, the Registration Statement, the Statutory Prospectus~~Offered Notes, the Prospectus ~~(together with any supplement thereto)~~ and such other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as ~~they~~ the Representatives may reasonably request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer and~~ President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signatory of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary Prospectus,~~ Program Documents to which the ~~Prospectus and any amendment or supplement thereto~~Company is a party, and ~~this Agreement and~~ that~~: (i)~~ , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and the Program Documents to which the Company is a party are true and correct ~~on and as of the Closing Date with the same effect as if made on the Closing Date~~ in all material respects, 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;. f) Counsel for the Indenture Trustee (~~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,~~ who shall be satisfactory to the ~~Company’s knowledge, threatened; and (iii~~Representatives) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 KPMG to~~ have furnished to the ~~Representatives~~Representatives an opinion, ~~at the Execution Time and at~~ dated the Closing Date, ~~letters~~in form and substance reasonably satisfactory to the Representatives. g) Counsel for the Owner Trustee (who shall be satisfactory to the Representatives) shall have furnished to the Representatives an opinion, dated ~~respectively as of~~ the ~~Execution Time~~ Closing Date, in form and substance reasonably satisfactory to the Representatives. h) Counsel for the Company (who shall be satisfactory to the Representatives) shall have furnished to the Representatives (i) opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, relating to certain bankruptcy matters and Federal income tax matters and (ii) a signed negative assurance letter, dated as of the Closing Date, in form and substance satisfactory to the Representatives, ~~confirming that they are a registered public accounting firm that is independent with respect~~ relating 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 29, 2020 (date of inception) through July 24, 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~~ Preliminary Prospectus, the Prospectus and the ~~Prospectus~~ Ratings FWP. i) The Representatives shall have received a letter, dated the Closing Date or such other date as may be agreed upon between the Representatives 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~~ from certified public accountants (who shall be satisfactory to the ~~Prospectus~~ Representatives), substantially in ~~this paragraph (e) include any supplement thereto at~~ the ~~date of~~ form previously approved by the ~~letter~~Representatives. (fj) ~~Subsequent to~~ The Offered Notes shall have received 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 ratings 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Ratings FWP. (gk) 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. (hl) ~~FINRA shall not have raised any objection with respect~~ Subsequent to the ~~fairness or reasonableness~~ date 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~~Prospectus, 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 there shall not have been ~~fulfilled when and as provided~~ any material adverse change in ~~this Agreement,~~ the business or ~~if any~~ properties of the ~~opinions, negative assurance letters and certificates mentioned above or elsewhere~~ Company which in ~~this Agreement shall not be reasonably satisfactory in form and substance to~~ the ~~Representatives and counsel for the Underwriters, this Agreement and all obligations~~ reasonable judgment of the ~~Underwriters hereunder may be canceled at~~Representatives, after consultation with the Company, materially impairs the investment quality of the Offered Notes so as to make it impractical or ~~at any time prior to,~~ inadvisable to proceed with the ~~Closing Date~~ public offering or the delivery of such Offered Notes as contemplated by the Representatives. 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, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateProspectus.

Appears in 2 contracts

Sources: Underwriting Agreement (CDF Funding, Inc.), Underwriting Agreement (CDF Funding, 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands 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. (d) The Representative shall have received from ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or 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: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, 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 29, 2020 (date of inception) through July 24, 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 letterRepresentative. (fg) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) 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. (ij) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~Nasdaq, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Administrative Services Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or a settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust ~~Account~~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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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 ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇~~▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇~~▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 2 contracts

Sources: Underwriting Agreement (Jaws Juggernaut Acquisition Corp), Underwriting Agreement (Jaws Juggernaut Acquisition Corp)

Appears in 2 contracts

Sources: Underwriting Agreement (North Atlantic Acquisition Corp), Underwriting Agreement (North Atlantic 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 its opinions ~~and negative assurance letter, each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) [Reserved] (d) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or 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: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, 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 29, 2020 (date of inception) through July 24, 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. (fg) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) 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. (ij) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~Nasdaq, satisfactory evidence of which shall have been provided to the Representatives. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Stockholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or a settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust ~~Account~~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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇~~▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇~~▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 2 contracts

Sources: Underwriting Agreement (Jaws Hurricane Acquisition Corp), Underwriting Agreement (Jaws Hurricane Acquisition Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and ~~the~~ any 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 Manager contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager 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~~ At the Closing Date, the Representatives shall have ~~requested~~ received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP and ~~caused Weil, Gotshal~~ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the ~~Company~~Company and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to ~~have furnished~~ the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the ~~Representatives its opinions~~ extent they deem proper, on certificates of responsible officers of the Company and ~~negative assurance letter, each dated~~ public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing ~~Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives~~Date. (c) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the 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 each Preliminary Prospectus~~Statement, the Disclosure Package, the Final Prospectus and any ~~amendment~~ supplements or ~~supplement~~ amendments 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 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 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 ~~Statutory Prospectus~~ 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has 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 the representations and warranties of the Manager 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. (f) The Company shall have requested and caused ~~KPMG~~ Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, ~~letters~~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 a registered public accounting firm that is independent~~ containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters 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 and certain financial information of the Company ~~for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time~~ and LNR contained or ~~Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included~~ incorporated by reference in the Registration Statement, the ~~Statutory Prospectus~~ 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 Statutory Prospectus and the Final 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. (fg) 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 Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) 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 ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ 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 Representatives, 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (gh) 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. (hi) ~~FINRA shall not have raised any objection with respect~~ Prior to the ~~fairness or reasonableness of~~ Closing Date, the ~~underwriting or other arrangements of the transactions contemplated hereby. (i) The~~ Securities shall ~~be duly~~ have been listed ~~subject to notice of issuance~~ and admitted and authorized for trading on the ~~Nasdaq Capital Market~~New York Stock Exchange, and satisfactory evidence of ~~which~~ such actions shall have been provided to the Representatives. (j) On At the ~~Effective Date~~Execution Time, the Company shall have ~~delivered~~ furnished to the Representatives ~~executed copies~~ a letter substantially in the form of Exhibit C hereto from (i) each officer and director of the ~~Securities Assignment Agreement~~Company (other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇), (ii) each officer of the ~~Founder’s Purchase Agreement~~Manager, ~~the Warrant Subscription Agreement~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ~~the Administrative Services Agreement. On or prior~~ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇, and (iii) SPT Investment, LLC, in each case addressed to the ~~Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement~~Representatives. (k) At ~~least one Business Day prior to~~ the ~~Closing Date~~Execution Time, the ~~Sponsor~~ Company 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives on a letter substantially in the ~~applicable Option Closing Date~~ form of ~~the following:~~ Exhibit D hereto from (i) ~~a certificate signed by~~ the ~~Chief Executive Officer~~ Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) ~~opinions and negative assurance letter of Weil, Gotshal &~~ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date▇▇, in ~~form and substance satisfactory~~ each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ~~▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇~~Four Times Square, ~~▇▇▇ ▇▇▇▇~~New York, ~~▇▇▇ ▇▇▇▇ ▇▇▇▇▇~~New York, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein~~10036-6522, on the Closing Date.

Appears in 2 contracts

Sources: Underwriting Agreement (Starwood Property Trust, Inc.), Underwriting Agreement (Starwood Property Trust, Inc.)

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 and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~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 obligations hereunder and to the following additional conditions: (a) The 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 term period prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice ~~objecting to~~ that would prevent 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~~ O’Melveny & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its ~~opinions and negative assurance letter~~opinion, ~~each~~ dated the Closing Date and addressed to the Representatives, ~~in a form reasonably acceptable~~ to the ~~Representatives~~effect set forth in Annex B hereto. (c) The Company shall have caused ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Executive Vice President-Corporate Development, General Counsel and Secretary of the Company to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, to the effect as set forth in Annex C hereto. (d) AMDI shall have requested and caused its counsel, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Annex D hereto. (e) Fujitsu shall have requested and caused its counsel, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Annex E hereto. (f) The Representatives shall have received from ~~Ropes~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇~~▇ LLP~~▇▇▇▇▇, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~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 reasonably request for the purpose of enabling them to pass upon such matters. (dg) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date pursuant to Section 3 hereto substantially in the form of Exhibit A hereto. (h) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by an officer such Selling Stockholder, dated the Closing Date, to the effect that the ~~signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the~~ representations and warranties of ~~the Company~~ such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date ~~with~~ to 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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ei) The Company shall have requested and caused ~~KPMG~~ Ernst & Young LLP 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 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 29, 2020 (date of inception) through July 24, 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 letterAnnex F hereto. (fj) 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 ~~Statutory Prospectus~~ 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 (eh) 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 ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any supplement thereto). (gk) 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 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. (l) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the 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~~m) The Securities shall ~~be duly listed subject to notice of issuance~~ have been included for listing on the Nasdaq ~~Capital Market,~~ Global Market and satisfactory evidence of ~~which~~ such action shall have been provided to the Representatives. (jn) On At the ~~Effective Date~~Execution Time, the Company shall have ~~delivered~~ furnished to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver a letter addressed to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the ~~same~~ form of Exhibit B hereto from each of the executive officers and ~~substance as~~ directors of the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates Company and ~~documents as Representatives may reasonably request with respect to the issuance~~ from an authorized officer of ~~such Option Securities~~each of AMDI and Fujitsu. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives 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 Representatives. 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, at ▇▇▇▇ ▇~~▇▇▇▇▇ ▇▇ ▇▇~~▇ ▇▇▇~~▇▇▇▇▇,~~ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein,~~ on the Closing Date.

Appears in 2 contracts

Sources: Underwriting Agreement (Spansion Inc.), Underwriting Agreement (Advanced Micro Devices 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, the Closing ~~Date~~ Date, with respect to the Underwritten Securities and Option Securities purchased on the Closing Date, and any settlement date, with respect to Option Securities purchased after the Closing Date, 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ US LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (d) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date or settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief ~~Executive~~ Financial Officer ~~and the principal financial or accounting officer~~ of the Company, dated the Closing ~~Date~~Date or settlement date, as applicable, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus, the Statutory Prospectus and any amendment or supplement thereto, and this Agreement and that: (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, as applicable, with the same effect as if made on the Closing Date 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 at or prior to the Closing ~~Date~~Date 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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date or settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date, as applicable, in form and substance satisfactory to the Representatives, 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 February 11, 2021 and for the period from ~~June 29~~February 11, ~~2020~~ 2021 (date of inception) through ~~July 24~~February 12, ~~2020~~2021, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement 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 (ef) include any supplement thereto at the date of the letter. (fg) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) 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. (ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq ~~Capital~~ Global Market, satisfactory evidence of which shall have been provided to the Representatives. (jk) On or prior to the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreements, the Rights Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date and any settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust ~~Account~~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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or such settlement date, as applicable, and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representatives have requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 ~~Representatives~~Representatives or the obligation of the Underwriters to purchase the Option Units on the applicable settlement date shall be cancelled, as applicable. 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, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date and any settlement date, as applicable.

Appears in 2 contracts

Sources: Underwriting Agreement (Bleuacacia LTD), Underwriting Agreement (Bleuacacia LTD)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten ~~Securities~~ Units and the Option ~~Securities~~Units, 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions dated the Closing Date or settlement date (as applicable) and ~~negative assurance letter~~addressed to the Representative, ~~each~~ in a form reasonably acceptable to the Representative. (c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (cd) The ~~Representatives~~ Representative shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by ~~the~~ one of its Chief Executive ~~Officer~~ Officers and ~~the~~ its principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (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 (as applicable) with the same effect as if made on the Closing Date 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 at or prior to the Closing ~~Date~~Date 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 and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) there has not occurred any Material Adverse Effect, or any development involving a prospective Material Adverse Effect, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~, there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~. (ef) The Company shall have requested and caused ~~KPMG~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~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 29~~[●], ~~2020 (date~~ 2021(date of inception) through ~~July 24~~[●], ~~2020~~2021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing ~~Date~~Date or settlement 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 (ef) include any supplement thereto at the date of the letter. (fg) 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 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) 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 (“FinCEN”) from the Company, in form and substance satisfactory to the Representative, along with such additional supporting documentation as the Representative has requested in connection with the verification of the foregoing certificate (i) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hj) 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. (ik) 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~~Representative. (jl) On or prior to the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Administrative Services Agreement, the Unit Subscription Agreement, the Insider ~~Letters~~ Letter, the Advisory Agreement and the Registration Rights Agreement. (km) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the Sponsor shall have caused the applicable purchase price for the Private Placement ~~Warrants~~ Units to be deposited into the Trust ~~Account~~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. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mo) The ~~several obligations of the Underwriters to purchase Option Securities hereunder are subject~~ Company shall have furnished to the ~~delivery to the Representatives on the applicable Option Closing Date of the following: (i)~~ Representative a certificate signed by the ~~Chief Executive Officer and~~ Secretary or the ~~principal financial or accounting officer~~ Assistant Secretary of the Company, dated the ~~Option~~ Closing Date, ~~confirming~~ certifying (i) that the ~~certificate delivered on~~ Amended and Restated Certificate of Incorporation and Bylaws of the ~~Closing Date pursuant to Section 6(d) hereof remains~~ Company are true and ~~correct as of such Option Closing Date;~~ complete, have not been modified and are in full force and effect, (ii) ~~opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for~~ that the ~~Company, dated the Option Closing Date,~~ resolutions relating to the ~~Option Securities to be purchased on such Option Closing Date~~ Offering contemplated by this Agreement are in full force and ~~otherwise to the same~~ effect ~~as the opinion required by Section 6(b) hereof;~~ and have not been modified, (iii) ~~opinions~~ copies of all correspondence between the Company or its counsel and ~~negative assurance letter of Ropes & ▇▇▇▇ LLP~~the Commission, ~~counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date~~ and ~~otherwise to the same effect as the opinion required by Section 6(c) hereof;~~ (iv) ~~a letter dated the Option Closing Date, in form and substance satisfactory~~ as to the ~~Representatives, from KPMG substantially~~ incumbency of the officers of the Company. The documents referred to in ~~the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date~~ such certificate shall ~~not~~ be ~~more than two business days prior~~ attached to such ~~Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities~~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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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, at ~~▇▇▇▇~~ 1211 Avenue of the ▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇ ~~▇▇▇~~▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Esq., unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 2 contracts

Sources: Underwriting Agreement (Thunder Bridge Capital Partners III Inc.), Underwriting Agreement (Thunder Bridge Capital Partners III Inc.)

Appears in 2 contracts

Sources: Underwriting Agreement (Platinum Eagle Acquisition Corp.), Underwriting Agreement (Platinum Eagle Acquisition Corp.)

Appears in 2 contracts

Sources: Underwriting Agreement (Saban Capital Acquisition Corp.), Underwriting Agreement (Saban Capital 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ Akin Gump S▇▇▇▇▇▇ H▇▇▇▇ & F▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a customary form reasonably acceptable to the Representatives. (c) The Representatives shall have received from ~~Ropes~~ D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related customary matters as the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or 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: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 ~~KPMG~~ BDO to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance reasonably satisfactory to the Representatives, 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 29, 2020 (date of inception) through July 24, 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. (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 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the 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 ~~Securities Assignment~~ Trust Agreement, the Forward Purchase Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription ~~Agreement~~ Agreement, the Registration Rights Agreement, the Insider Letter and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing ~~Date~~Date or any settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust ~~Account~~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 Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 ~~Ropes~~ D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇4▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: D▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 2 contracts

Sources: Underwriting Agreement (Zimmer Energy Transition Acquisition Corp.), Underwriting Agreement (Zimmer Energy Transition 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from ~~Ropes~~ D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (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 (as applicable) with the same effect as if made on the Closing Date 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 at or prior to the Closing ~~Date~~Date 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying 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, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, 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~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020~~Statutory Prospectus and Prospectus, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement 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(f) include any supplement thereto at the date of the letter. (fg) 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(f) of this Section 6 ‎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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any 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 Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) 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. (ij) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives. (jk) On the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Stockholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~‎5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representatives have requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives 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 Representatives. 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 ~~Ropes~~ D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇4▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: D▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 2 contracts

Sources: Underwriting Agreement (Star Peak Corp II), Underwriting Agreement (Star Peak Corp 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,~~ Time and the Closing Date (including, for the avoidance of doubt, compliance with covenants and ~~any Option Closing Date~~conditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions ~~hereof~~of this Section, to the performance by the Company of its obligations hereunder and to the following additional conditions: (ai) The ~~Prospectus, and any supplement thereto,~~ Canadian Final Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures and (ii) the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.K. of Form F-9 under the Act, in ~~the manner and~~ each case, within the applicable time period ~~required by Rule 424(b)~~prescribed for such filing and in accordance with Section 4(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 Commission or the Reviewing Authority; (b) The Company shall have requested and caused ~~Weil~~Mayer, ~~Gotshal & ▇▇~~Brown, ▇▇▇▇ ~~LLP~~& Maw, U.S. counsel for the Company, to have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative their opinion, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, ~~in a form reasonably acceptable~~ to the ~~Representatives.~~effect set forth in Annex I hereto; (c) ~~The Representatives shall have received from Ropes &~~ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company, shall have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, to the effect set forth in Annex II; (d) The Representative shall have received from Shearman & Sterling, U.S. counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Indenture (if applicable), the Registration Statement, the ~~Statutory Prospectus, the~~ U.S. Final Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably require and request for the purpose of enabling them to pass upon such matters.; (de) The Representative shall have received from United States in-house counsel to the Company, an opinion to the effect set forth in Annex III; (f) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the President and Chief Executive Officer and the ~~principal financial or accounting officer~~ Executive Vice-President Corporate Development and Chief Financial Officer of the Company, dated the Closing Date, to the effect ~~that~~ that: (i) the signers of such certificate have carefully examined the Registration ~~Statement each Preliminary~~ Statement, the Canadian Final Prospectus and the U.S. Final Prospectus, any supplements to the Canadian Final Prospectus and ~~any amendment or supplement thereto,~~ the U.S. Final Prospectus and this ~~Agreement and that:~~Agreement; (iii) 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 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 at or prior to the Closing Date; (iiiii) 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~~been, to the Company’s 's knowledge, ~~threatened; and~~instituted or threatened by the Reviewing Authority or the Commission; (~~iii~~iv) since the date of the most recent financial statements included or incorporated by reference in the ~~Statutory Prospectus~~ Canadian Final Prospectus, as amended or supplemented prior to the Execution Time and the ~~Prospectus (exclusive of any supplement thereto)~~U.S. Final Prospectus, as amended or supplemented prior to the Execution Time, there has been no ~~Material Adverse Effect~~material adverse effect on 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 ~~Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused KPMG~~ Canadian Final Prospectus, as amended or supplemented prior to ~~have furnished to the Representatives, at~~ the Execution Time and at the U.S. Final Prospectus, as amended or supplemented prior to the Execution Time; and (v) the Company is in compliance with the covenants and conditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness; (g) At the Execution Time and the Closing Date, ~~letters,~~ the Representative shall have received from KPMG LLP a letter or letters dated ~~respectively as of the Execution Time and as of the Closing Date~~such date or dates, in form and substance satisfactory to the ~~Representatives~~Representative, ~~confirming that they are a registered public accounting firm that is independent~~ 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 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 29, 2020 (date of inception) through July 24, 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 certain financial ~~statement schedules included~~ information contained in the Registration Statement, the ~~Statutory~~ U.S. Final 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; andCanadian Final Prospectus; (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. (fh) 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)~~as amended or supplemented prior to the Execution Time, ~~the Statutory Prospectus~~ and the Canadian Final Prospectus ~~(exclusive of any supplement thereto)~~as amended or supplemented prior to the Execution Time and the U.S. Final Prospectus as amended or supplemented prior to the Execution Time, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 5 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 ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ Canadian Final Prospectus, as amended or supplemented prior to the Execution Time and the ~~Prospectus (exclusive of any supplement thereto)~~ U.S. Final Prospectus, as amended or supplemented prior to the Execution Time, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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),~~ and the ~~Statutory~~ Canadian Final Prospectus and the ~~Prospectus~~ U.S. Final Prospectus; (~~exclusive~~ i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any ~~supplement thereto).~~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; (gj) If the Registration Statement or an offering of Securities has been filed with the NASD for review, the NASD shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements; (k) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ 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 Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 ~~Representatives~~ 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 ~~Representatives~~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 5 shall be delivered at the office of ~~Ropes & ▇~~the Company, Attention: Corporate Finance Law Department, ▇▇▇ ~~LLP, counsel for the Underwriters, at ▇~~- ▇▇▇ ▇▇▇▇▇▇ ▇▇ .▇., ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇~~▇▇, ▇▇~~▇ ~~▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein,~~ on the Closing ~~Date~~Date or such other place as the Representative shall so instruct.

Appears in 2 contracts

Sources: Underwriting Agreement (Transcanada Pipelines LTD), Underwriting Agreement (Transcanada Pipelines 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~Skadden, ~~Gotshal &~~ Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives,~~ Representative in a the form ~~reasonably acceptable to the Representatives~~attached as Exhibit A hereto. (c) The ~~Representatives~~ Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands 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 B hereto. (d) The Representative shall have received from ~~Ropes~~ D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, U.S. counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief 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 each Preliminary Prospectus, 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 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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) 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 ~~KPMG~~ M▇▇▇▇▇ to have furnished to the ~~Representatives~~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 ~~Representatives~~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 29~~January 28, ~~2020~~ 2015 (~~date of~~ inception) ~~through July 24~~to March 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~~2015, 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; 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 (eg) include any supplement thereto at the date of the letter. (fh) 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 (eg) 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 ~~prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) ~~Prior to the Closing Date, the~~ The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Sponsor, signed by its managers and dated as of the Closing Date, certifying as to its constituent documents and resolutions relating to the authorization and performance of certain matters in connection with the Offering and as to the incumbency of such ~~further information, certificates and documents as the Representatives may reasonably request~~managers. (hj) 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. (ik) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq~~ NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jl) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives 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 and the Registration Rights Agreement~~Letters. (km) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the total purchase price for the Private Placement Warrants to be ~~deposited~~ delivered to the Company so that the Company can fund the portion of the gross proceeds of the Private Placement Warrants required under Section 3(b) into the Trust ~~Account~~Account one Business Day prior to the Closing Date. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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~~ D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇4▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇~~▇ ▇▇▇▇~~▇, ~~Attention: ▇▇▇▇ ▇.~~ ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Sources: Underwriting Agreement (GP Investments Acquisition Corp.), Underwriting Agreement (GP Investments 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~ Representative its opinions and negative assurance ~~letter, each~~ letter dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes &~~ ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, ~~such opinion or~~ its opinions and negative assurance letter, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (d) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (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 (as applicable) with the same effect as if made on the Closing Date 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 at or prior to the Closing ~~Date~~Date 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 furnished to the Representative a certificate signed by the Chief Operating Officer of the Company, dated the Closing Date, certifying 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, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ ▇▇▇▇▇▇ to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~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~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020,~~ Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement 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 (ef) include any supplement thereto at the date of the letter. (fg) 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 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any 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 ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) 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. (ij) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) On the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, , the Insider ~~Letters~~ Letter and the Registration and Stockholder Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representative has requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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 &~~ in electronic format to ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, ~~at ▇▇▇▇ ▇~~Attention: ▇▇▇▇▇ ▇~~▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇.~~ ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 2 contracts

Sources: Underwriting Agreement (Figure Acquisition Corp. I), Underwriting Agreement (Figure Acquisition Corp. I)

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 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~ Ropes & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from ~~Ropes~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (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 (as applicable) with the same effect as if made on the Closing Date 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 at or prior to the Closing ~~Date~~Date 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying 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, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, 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~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020~~Statutory Prospectus and Prospectus, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement 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 (ef) include any supplement thereto at the date of the letter. (fg) 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 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any 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 Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) 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. (ij) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives. (jk) On the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, the Insider ~~Letters~~ Letter and the Registration and Stockholder Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representatives has requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives 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 Representatives. 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~~ in electronic format to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, ~~at ▇▇▇▇ ▇~~Attention: ▇▇▇▇▇ ▇~~▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇.~~ ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 2 contracts

Sources: Underwriting Agreement (Climate Change Crisis Real Impact I Acquisition Corp), Underwriting Agreement (Climate Change Crisis Real Impact I 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,~~ pursuant to a Terms Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein ~~as of~~ at the Execution ~~Time,~~ Time and the ~~Closing Date and any Option~~ Closing Date, 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use Company shall have ~~been issued~~ requested and ~~no proceedings~~ caused Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for ~~that purpose shall have been instituted or threatened~~the Company, to furnish to the Representatives its opinion and letter, dated the Closing Date and addressed to the Representatives, substantially to the effect set forth in Exhibit A—1. (b) The Company shall have requested and caused ~~Weil, Gotshal &~~ ▇▇▇▇▇▇▇▇ ~~LLP~~▇. Camera, ~~counsel for~~ Esq., the General Counsel of the Company, to ~~have furnished~~ furnish to the Representatives ~~its opinions~~ his opinion and ~~negative assurance~~ letter, ~~each~~ dated the Closing Date and addressed to the Representatives, ~~in a form reasonably acceptable~~ substantially to the ~~Representatives~~effect set forth in Exhibit A—2. (c) The Representatives shall have received from ~~Ropes~~ Shearman & ~~▇▇▇▇~~ Sterling LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to ~~the issuance and sale~~ certain of the ~~Securities~~matters referred to in paragraphs 1, ~~the Registration Statement~~3, ~~the Statutory Prospectus~~4, ~~the Prospectus (together with any supplement thereto)~~ 5 and ~~other related matters as the Representatives may reasonably require~~6 of Exhibit A-1, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling ~~them~~ it to pass upon such matters. In addition, such counsel shall state that (A) the Registration Statement, as of the date of the Terms Agreement, and the Prospectus, as of its date, appear on their faces to have been appropriately responsive in all material respects to the applicable requirements of the Act and the applicable rules and regulations of the Commission thereunder; and (B) such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Underwriters at which the contents of the Registration Statement and the Prospectus (excluding the documents incorporated by reference) were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, on the basis of the foregoing, no fact has come to the attention of such counsel that gave such counsel reason to believe that (i) the Registration Statement, as of the date of the Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Prospectus, as of its date and the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief financial officer of the Company and the ~~principal financial~~ treasurer or ~~accounting officer~~ the controller of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the ~~Registration Statement each Preliminary~~ Prospectus, ~~the Prospectus and~~ any amendment or supplement ~~thereto~~to the Prospectus, the Terms Agreement and this Agreement and that: (i) the representations and warranties of the Company in this Agreement and the Terms Agreement are true and correct in all material respects on and as of the Closing ~~Date~~ 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~~ii) since the date of the most recent financial statements included in the ~~Statutory Prospectus and the~~ Prospectus (exclusive of any amendment or supplement ~~thereto~~thereto filed subsequent to the date of the Terms Agreement), there has been no ~~Material Adverse Effect~~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 Statutory Prospectus and~~ by the Prospectus (exclusive of any amendment or supplement ~~thereto~~thereto filed subsequent to the date of the Terms Agreement). (e) The ~~Company~~ Underwriters shall have ~~requested~~ received on (i) the date of the Terms Agreement, and ~~caused KPMG to have furnished to the Representatives, at the Execution Time and at~~ (ii) the Closing Date, ~~letters~~a letter, dated ~~respectively as of the Execution Time and as of the Closing Date~~such date, in form and substance satisfactory to the ~~Representatives~~Underwriters, ~~confirming that they are a registered~~ from PricewaterhouseCoopers LLC, independent public ~~accounting firm that is independent~~ accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters 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 and certain financial information contained in or incorporated by reference into the ~~Company for the period from June 29~~Prospectus, ~~2020 (date of inception) through July 24, 2020, provided that the cutoff date~~ and each such letter shall use a “cut-off date” not ~~be more~~ earlier than ~~two business~~ three 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~~ such letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the ~~Registration Statement~~ Prospectus (exclusive of any amendment ~~thereof),~~ or supplement thereto filed subsequent to the ~~Statutory Prospectus and~~ date of the ~~Prospectus (exclusive of any supplement thereto~~Terms Agreement), there shall not have been (i) any change in the capital stock, any increase in long-term debt (excluding the Underwritten Securities) or any decrease ~~specified~~ in consolidated net current assets (working capital) or stockholders’ equity, or any decreases in total consolidated net sales, income from operations or net income, of the Company with respect to the period subsequent to the end of the Company’s most recently completed fiscal quarter, other than as set forth in the letter ~~or letters~~ referred to in ~~paragraph (e~~Section 5(e) ~~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) ), prospects, earnings, business or ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus and the~~ Prospectus (exclusive of any amendment or supplement ~~thereto~~thereto filed subsequent to the date of the Terms Agreement) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~proceed with~~ market the ~~offering or delivery of the~~ Underwritten Securities as contemplated by ~~the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and~~ the Prospectus (exclusive of any amendment or supplement ~~thereto~~thereto filed subsequent to the date of the Terms Agreement). (g) 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. (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. (~~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~~ Prospectus shall have been ~~provided~~ filed with the Commission pursuant to Rule 424(b) under the ~~Representatives. (j) On~~ Act at or before 5:30 P.M., New York City time, on the ~~Effective Date,~~ second full Business Day after the ~~Company shall have delivered to the Representatives executed copies~~ date of the ~~Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription~~ Terms Agreement and any Rule 462(b) Registration Statement required in connection with the ~~Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters~~ offering 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 Representatives pursuant to Section 5(g) hereof~~ Underwritten Securities shall have been ~~issued as~~ filed and become effective no later than 10:00 p.m., New York City time, on the date of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesTerms Agreement. 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, negative assurance letters~~ 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 Representatives 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 Representatives. 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~~ 5 will be delivered at the office of ~~Ropes & ▇▇▇▇ LLP,~~ counsel for the Underwriters, ~~at ▇~~Shearman & Sterling LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein,~~ prior to 9 A.M. on the Closing Date.

Appears in 2 contracts

Sources: Terms Agreement (Interpublic Group of Companies, Inc.), Terms Agreement (Interpublic Group of Companies, 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~ Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (d) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each “road show” as defined in Rule 433(h) of the Act used in connection with the offering of the Securities, and this Agreement and that: (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 (as applicable) with the same effect as if made on the Closing Date 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 at or prior to the Closing ~~Date~~Date 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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 furnished to the Representative a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying 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, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ ▇▇▇▇▇▇ to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~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~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020~~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~~Date or settlement 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 (ef) include any supplement thereto at the date of the letter. (fg) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) 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. (ij) 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~~Representative. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Purchase Agreement, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Administrative Services Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representative has requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 2 contracts

Sources: Underwriting Agreement (North Mountain Merger Corp.), Underwriting Agreement (North Mountain Merger Corp.)

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 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date or the settlement date, as the case may be, and addressed to the ~~Representatives~~Representative, in a form satisfactory to the Representative. (c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder (Cayman) LLP, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date or the settlement date, as the case may be, and addressed to the Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (cd) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or the settlement date, as the case may be, and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or the settlement date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, 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 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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the ~~Representatives~~Representative, at the ~~Execution~~ Applicable Time and at the Closing ~~Date~~Date or the settlement date, as the case may be, letters, dated respectively as of the ~~Execution~~ Applicable Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~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 29~~December 8, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~December 31, ~~2020,~~ 2021; provided that the cutoff date shall not be more than two business days prior to such ~~Execution~~ Applicable 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 (ef) include any supplement thereto at the date of the letter. (fg) Subsequent to the ~~Execution~~ Applicable 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or the settlement date, as the case may be, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) 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. (ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq ~~Capital~~ Global Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Administrative Services Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or the settlement date, as the case may be, the Sponsor shall have caused the purchase price for the Private Placement Warrants and the Overfunding Loans 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, plus an amount equal to $10.20 of each Unit issued in the Offering as of such Closing Date or settlement date, as the case may be. 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 and the Overfunding Loans 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 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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Sources: Underwriting Agreement (SK Growth Opportunities Corp), Underwriting Agreement (SK Growth Opportunities 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,~~ Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein ~~as of~~ at the Execution ~~Time,~~ Time and the ~~Closing Date and any Option~~ Closing Date, 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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, special counsel for the Company, to shall have furnished to the Representatives its ~~opinions~~ opinion and ~~negative assurance~~ letter, ~~each~~ dated the Closing Date and addressed to the Representatives, ~~in a form reasonably acceptable~~ substantially to the ~~Representatives~~effect set forth in Exhibits A and B hereto. (cb) The Representatives shall have received from ~~Ropes~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the ~~Securities~~Notes, the Indenture, the Registration Statement, the ~~Statutory Prospectus~~Disclosure Package, the Prospectus (~~together with any supplement thereto~~as amended or supplemented at the Closing Date) and other related matters as the 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. (dc) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief executive officer or executive vice president and any of the chief financial officer, the treasurer 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 each Preliminary~~ Prospectus, ~~the Prospectus and~~ any amendment or supplement ~~thereto,~~ to the Prospectus and this Agreement and that: (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 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~~ii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ Disclosure Package and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there has been no ~~Material Adverse Effect~~event or occurrence that would reasonably be expected to result in a material adverse effect on the general affairs, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, except as set forth in or contemplated by the Disclosure Package and the Prospectus. (d) On the date hereof, the Representatives shall have requested and the Company shall have caused Deloitte & Touche LLP to furnish to the Representatives a comfort letter, dated the date hereof, in form and substance reasonably satisfactory to the Representatives, covering the financial information in the ~~Statutory Prospectus~~ Disclosure Package and ~~the Prospectus (exclusive of any supplement thereto)~~other customary information. (e) ~~The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at~~ On the Closing Date, ~~letters~~the Representatives shall have received from Deloitte & Touche LLP, a letter dated ~~respectively as of the Execution Time and as of the Closing Date~~such date, in form and substance reasonably satisfactory to the Representatives, ~~confirming~~ to the effect that they ~~are a registered public accounting firm~~ reaffirm the statements made in the letter furnished by them pursuant to subsection (d) of this Section 5, except that ~~is independent with respect~~ (i) it shall cover the financial information in the Prospectus and any amendment or supplement thereto and (ii) the specified date referred to therein for the carrying out of procedures shall be no more than three Business Days prior 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 29, 2020 (date of inception) through July 24, 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 lettercase may be. (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~~ Disclosure Package and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in ~~paragraph~~ paragraphs (d) and (e) of this Section 6 5; or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings~~financial condition, ~~business, management, properties, assets, rights,~~ results of operations, ~~condition (financial~~ business operations, assets or ~~otherwise) or prospects~~ liabilities of the ~~Company~~Company and its subsidiaries, ~~whether or not arising from transactions in the ordinary course of business~~taken as a whole, except as set forth in or contemplated in by the ~~Statutory Prospectus~~ Disclosure Package and the ~~Prospectus (exclusive of any supplement thereto)~~ Prospectus, the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the ~~sole~~ reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~proceed with~~ market the ~~offering or delivery of the Securities~~ Notes as contemplated by the ~~Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus~~ Disclosure Package and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (g) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Representatives shall have received counterparts, conformed as executed, thereof. (h) At the Closing Date, the Notes shall be eligible for clearance and settlement through DTC. (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(g) under the Securities 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. (j) 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) 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 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 Representatives. 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~~ 5 will be delivered at the office of ~~Ropes &~~ ▇▇~~▇▇ LLP, counsel for the Underwriters, at~~ ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein,~~ on the Closing Date.

Appears in 2 contracts

Sources: Underwriting Agreement (RR Donnelley & Sons Co), Underwriting Agreement (RR Donnelley & Sons Co)

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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ 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 Company shall have requested and caused ▇▇▇▇▇▇ 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 ~~Ropes &~~ ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the 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 Statement and each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each road show used in connection with the Offering, and this Agreement and that: (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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, 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 29~~December 16, 2020 (~~date of~~ inception) through ~~July 24~~December 31, 2020, ; provided that the cutoff date shall not be more than two ~~business days~~ 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~~Section 7(f) include any supplement thereto at the date of the letter. (fg) 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~~Section 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) 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. (ij) The Offered Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~Nasdaq, satisfactory evidence of which shall have been provided to the Representatives. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription ~~Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust~~ Agreement, the ~~Warrant~~ Forward Purchase Agreement, the Insider ~~Letters~~ Letter and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 ~~Ropes &~~ ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date 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)

Appears in 2 contracts

Sources: Underwriting Agreement (Fortress Value Acquisition Corp.), Underwriting Agreement (Fortress Value Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten ~~Securities~~ Units and the Option ~~Securities~~Units, 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ P▇▇▇ ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative, in a form satisfactory to the Representative. (d) The Representative shall have received from Ropes & ▇G▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief ~~Executive~~ Financial Officer ~~and the principal financial or accounting officer~~ of the Company, dated the Closing Date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) 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 ~~KPMG~~ M▇▇▇▇▇ to have furnished to the ~~Representatives~~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 ~~Representatives~~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 ~~June 29~~November 24, 2020 (date of inception) through ~~July 24~~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 (ef) include any supplement thereto at the date of the letter. (fh) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hj) 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. (ik) 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~~Representative. (jl) On or prior to the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Warrants Purchase Agreement, Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Administrative Services Agreement. (km) 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~~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. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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, 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~~ 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 its opinions ~~and negative assurance letter, each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a customary form reasonably acceptable to the Representatives. (c) The Company shall have requested and caused ▇▇▇▇▇▇ 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 customary form reasonably acceptable to the Representatives. (d) The Representatives shall have received from ~~Ropes~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related customary 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. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or 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: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance reasonably satisfactory to the Representatives, 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 29, 2020 (date of inception) through July 24, 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. (fg) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) 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. (ij) 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. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ 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. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or a settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust ~~Account~~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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 ~~Ropes~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇,~~ unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 2 contracts

Sources: Underwriting Agreement (Poema Global Holdings Corp.), Underwriting Agreement (POEMA Global Holdings 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 its opinions ~~and negative assurance letter, each~~ 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 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 ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or 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: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, 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 29, 2020 (date of inception) through July 24, 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. (fg) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) 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. (ij) 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. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ 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. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or a settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust ~~Account~~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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date 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~~ 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (d) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or 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: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 ~~KPMG~~ ▇▇▇▇▇▇ to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, 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 29, 2020 (date of inception) through July 24, 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 letterRepresentative. (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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ 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~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Administrative Services Agreement. (k) At least one Business Day prior to the Closing ~~Date~~Date or a settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust ~~Account~~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 ~~Representatives~~ Representative pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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 ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇~~▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇~~▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 2 contracts

Sources: Underwriting Agreement (Class Acceleration Corp.), Underwriting Agreement (Class Acceleration Corp.)

Appears in 2 contracts

Sources: Underwriting Agreement (TPG Pace Tech Opportunities II Corp.), Underwriting Agreement (TPG Pace Beneficial II Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and ~~the~~ any 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 Manager contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager 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~~ At the Closing Date, the Representatives shall have ~~requested~~ received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP and ~~caused Weil, Gotshal~~ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the ~~Company~~Company and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to ~~have furnished~~ the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the ~~Representatives its opinions~~ extent they deem proper, on certificates of responsible officers of the Company and ~~negative assurance letter, each dated~~ public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing ~~Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives~~Date. (c) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the 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 each Preliminary Prospectus~~Statement, the Disclosure Package, the Final Prospectus and any ~~amendment~~ supplements or ~~supplement~~ amendments 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 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 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 ~~Statutory Prospectus~~ 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has 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 the representations and warranties of the Manager 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. (f) The Company shall have requested and caused ~~KPMG~~ Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, ~~letters~~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 a registered public accounting firm that is independent~~ containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters 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 29, 2020 (date of inception) through July 24, 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 certain financial ~~statement schedules included~~ information contained or incorporated by reference in the Registration Statement, the ~~Statutory Prospectus~~ 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 Statutory Prospectus and the Final 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. (fg) 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 Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) 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 ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ 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 Representatives, 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (gh) 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. (hi) ~~FINRA shall not have raised any objection with respect~~ Prior to the ~~fairness or reasonableness of~~ Closing Date, the ~~underwriting or other arrangements of the transactions contemplated hereby. (i) The~~ Securities shall ~~be duly~~ have been listed ~~subject to notice of issuance~~ and admitted and authorized for trading on the ~~Nasdaq Capital Market~~New York Stock Exchange, and satisfactory evidence of ~~which~~ such actions shall have been provided to the Representatives. (j) On At the ~~Effective Date~~Execution Time, the Company shall have ~~delivered~~ furnished to the Representatives ~~executed copies~~ a letter substantially in the form of Exhibit C hereto from (i) each officer and director of the ~~Securities Assignment Agreement~~Company (other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇), (ii) each officer of the ~~Founder’s Purchase Agreement~~Manager, ~~the Warrant Subscription Agreement~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ~~the Administrative Services Agreement. On or prior~~ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇, and (iii) SPT Investment, LLC, in each case addressed to the ~~Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement~~Representatives. (k) At ~~least one Business Day prior to~~ the ~~Closing Date~~Execution Time, the ~~Sponsor~~ Company 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives on a letter substantially in the ~~applicable Option Closing Date~~ form of ~~the following:~~ Exhibit D hereto from (i) ~~a certificate signed by~~ the ~~Chief Executive Officer~~ Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) ~~opinions and negative assurance letter of Weil, Gotshal &~~ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date▇▇, in ~~form and substance satisfactory~~ each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ~~▇▇▇~~▇ ▇▇▇▇▇▇ ~~▇▇ ▇▇▇ ▇▇~~▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇~~, Attention: ▇▇▇▇ ▇.~~ -▇▇▇▇~~▇, unless otherwise indicated herein~~, on the Closing Date.

Appears in 2 contracts

Sources: Underwriting Agreement (Starwood Property Trust, Inc.), Underwriting Agreement (Starwood Property Trust, 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 its opinions ~~and negative assurance letter, each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a customary form reasonably acceptable to the Representatives. (c) The Company shall have requested and caused ▇▇▇▇▇▇ 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 customary form reasonably acceptable to the Representatives. (d) The Representatives shall have received from ~~Ropes~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related customary matters as the 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. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or 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: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance reasonably satisfactory to the Representatives, 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 29, 2020 (date of inception) through July 24, 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. (fg) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) 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. (ij) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Forward Purchase Agreements, 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. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or a settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust ~~Account~~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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 ~~Ropes~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇,~~ unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 2 contracts

Sources: Underwriting Agreement (Bluescape Opportunities Acquisition Corp.), Underwriting Agreement (Bluescape Opportunities Acquisition Corp.)

Appears in 2 contracts

Sources: Underwriting Agreement (Thunder Bridge Acquisition II, LTD), Underwriting Agreement (Thunder Bridge Acquisition II, 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~Ledgewood PC, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance ~~letter, each~~ letter dated the Closing Date and any settlement date and addressed to the ~~Representatives,~~ Representatives in a form ~~reasonably~~ and substance acceptable to the Representatives. (c) The Company shall have requested and caused ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives. (d) The Representatives shall have received from ~~Ropes~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, ~~such opinion or~~ its opinions and negative assurance letter, ~~each~~ dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer ~~and the principal financial~~ or ~~accounting officer~~ Chief Financial Officer of the Company, dated the Closing ~~Date~~Date and any settlement date, to the effect that ~~the signers~~ each signer of such certificate ~~have~~ has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement 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 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. (g) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, 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~~ thereunder, that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 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~~ , and reporting on the other procedures 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 by them in respect of the ~~Company) set forth~~ financial information 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(g) include any supplement thereto at the date of the applicable letter. (fh) 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(g) of this ~~Section~~ ‎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 ~~prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any 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 Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any 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~~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. (ij) 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. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the ~~Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust~~ Registration Rights Agreement, the ~~Warrant~~ Units Subscription Agreement, the Insider ~~Letters~~ Letter, the Millennium Purchase Agreement and the ~~Registration Rights~~ Services Agreement. (kl) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the ~~purchase price for~~ sale of the Private Placement ~~Warrants~~ Units to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to ~~Section 5(g~~‎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. (mn) ~~The several obligations of the Underwriters to purchase Option Securities hereunder are subject~~ Prior to the ~~delivery~~ Closing Date and any settlement date, the Company shall have furnished to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as the Representatives may reasonably ~~request with respect to the issuance of such Option Securities~~request. If any of the conditions specified in this ~~Section~~ ‎Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the ~~opinions, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 any applicable settlement date by the Representatives. 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~~ ‎Section 6 shall be delivered at the office of ~~Ropes~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., unless otherwise indicated herein, on the Closing ~~Date~~Date and any applicable settlement date.

Appears in 2 contracts

Sources: Underwriting Agreement (FTAC Hera Acquisition Corp.), Underwriting Agreement (FTAC Hera Acquisition Corp.)

Appears in 2 contracts

Sources: Underwriting Agreement (Vy Global Growth), Underwriting Agreement (Vy Global Growth)

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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~ Ropes & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its ~~opinions~~ opinion and negative assurance ~~letter, each~~ letter dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurance ~~letter, each~~ letter dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (d) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief Executive Officer and ~~the principal financial or accounting~~ another executive officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (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 Date 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 at or prior to ~~the~~ such Closing ~~Date~~Date 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 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) The Company shall have requested and caused ~~KPMG~~ ▇▇▇▇▇▇ to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), comfort letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~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~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020,~~ Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement 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 (ef) include any supplement thereto at the date of the letter. (fg) 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 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any 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 ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) 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. (ij) The Securities shall be duly ~~listed~~ listed, subject to notice of ~~issuance~~ issuance, on the ~~Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) On the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, the Insider ~~Letters~~ Letter and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representative has requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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~~ in electronic format to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, ~~at ▇▇▇▇ ▇~~Attention: ▇▇▇▇▇ ▇~~▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇.~~ ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 2 contracts

Sources: Underwriting Agreement (KKR Acquisition Holdings I Corp.), Underwriting Agreement (KKR Acquisition Holdings I Corp.)

Appears in 2 contracts

Sources: Underwriting Agreement (CF Corp), Underwriting Agreement (CF Corp)

Appears in 2 contracts

Sources: Underwriting Agreement (Sustainable Opportunities Acquisition Corp.), Underwriting Agreement (Sustainable Opportunities Acquisition Corp.)

Appears in 2 contracts

Sources: Underwriting Agreement (Trebia Acquisition Corp.), Underwriting Agreement (Trebia Acquisition Corp.)

Appears in 2 contracts

Sources: Underwriting Agreement (Vector Acquisition Corp IV), Underwriting Agreement (Vector Acquisition Corp III)

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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 its opinions ~~and negative assurance letter, each~~ 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 Company shall have requested and caused ▇▇▇▇▇▇ 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 ~~Ropes~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or 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: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, 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 29, 2020 (date of inception) through July 24, 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. (fg) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) 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. (ij) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ 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. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or a settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust ~~Account~~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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 ~~Ropes~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 2 contracts

Sources: Underwriting Agreement (AEA-Bridges Impact Corp.), Underwriting Agreement (AEA-Bridges Impact Corp.)

Appears in 2 contracts

Sources: Underwriting Agreement (Fortress Capital Acquisition Corp), Underwriting Agreement (Fortress Capital 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 its ~~opinions~~ opinion and negative assurance ~~letter, each~~ letter dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from ~~Ropes & ▇▇▇▇~~ Sidley Austin LLP, counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurance ~~letter, each~~ letter dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as any Written Testing-the-Waters Communications and each road show used in connection with the offering of the Securities, and this Agreement and that: (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 Date 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 at or prior to ~~the~~ such Closing ~~Date~~Date 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have furnished to the Representatives a certificate signed by the signed by the Chief 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) The Company shall have requested and caused ~~KPMG~~ ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), comfort letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, 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~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020,~~ Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement 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 (ef) include any supplement thereto at the date of the letter. (fg) 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 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Statutory Prospectus and the Prospectus (exclusive of any 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 Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) 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. (ij) The Securities shall be duly ~~listed~~ listed, subject to notice of ~~issuance~~ issuance, on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (jk) On the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, the Insider ~~Letters~~ Letter, the Administrative Services Agreement and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representatives have requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives 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 Representatives. 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 & ▇▇▇▇~~ in electronic format to Sidley Austin LLP, counsel for the Underwriters, ~~at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,~~ Attention: ~~▇▇▇▇ ▇. ▇▇▇▇▇~~[●], unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 2 contracts

Sources: Underwriting Agreement (Focus Impact Acquisition Corp.), Underwriting Agreement (Focus Impact Acquisition Corp.)

Appears in 2 contracts

Sources: Underwriting Agreement (Vector Acquisition Corp II), Underwriting Agreement (Vector Acquisition Corp II)

Appears in 1 contract

Sources: Underwriting Agreement (Global Cornerstone Holdings 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (d) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (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 (as applicable) with the same effect as if made on the Closing Date 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 at or prior to the Closing ~~Date~~Date 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 furnished to the Representative a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying 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, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ ▇▇▇▇▇▇ to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~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~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020~~Statutory Prospectus and Prospectus, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement 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(f) include any supplement thereto at the date of the letter. (fg) 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 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any 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 ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) 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. (ij) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~Nasdaq, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) On the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the ~~Warrant~~ Securities Subscription Agreement, the Private Placement Purchase Agreement, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement, the Services Agreement and the Subscription Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement ~~Warrants~~ Shares to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~‎5(hh) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representative has requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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~~ in electronic format to Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, ~~at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,~~ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 1 contract

Sources: Underwriting Agreement (Innovatus Life Sciences Acquisition Corp.)

Appears in 1 contract

Sources: Underwriting Agreement (CC Neuberger Principal Holdings I)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten Securities~~ Firm Units and the ~~Option Securities~~Optional Units, 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~L.L.P., counsel for the Company, to have furnished to the ~~Representatives~~ Representative its ~~opinions and negative assurance letter~~opinion, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a substantially the form ~~reasonably acceptable~~ as previously agreed to by the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the ~~Securities~~Units, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (d) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by one of the Co-Chief Executive ~~Officer~~ Officers and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (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 (as applicable) with the same effect as if made on the Closing Date 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 at or prior to the Closing ~~Date~~Date 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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 ~~KPMG~~ WithumSmith to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in substantially the form ~~and substance satisfactory~~ as previously agreed to by the ~~Representatives~~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 29~~January 28, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~February 2, ~~2020~~2021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing ~~Date~~Date or settlement 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. (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 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the ~~Securities~~ Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ 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~~ Units shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the ~~Representatives~~ Representative executed copies of the Trust Agreement, the Securities ~~Assignment~~ Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Support Agreement. (k) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company 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 ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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, at ▇▇▇▇ ▇~~▇▇▇▇▇ ▇▇~~ ▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 1 contract

Sources: Underwriting Agreement (Switchback III 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,~~ 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,~~ Initial Sale Time and the ~~Closing Date and any Option~~ Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions ~~hereof~~of this Section, to the performance by the Company of its obligations ~~hereunder~~ hereunder, and to the following additional conditions: (a) ~~The Prospectus,~~ Each Preliminary Final Prospectus that supplements the Basic Prospectus and ~~any supplement thereto,~~ the Final Prospectus shall have been filed with the Commission, in ~~the manner and~~ each case, within the applicable time period ~~required by Rule 424(b)~~prescribed for such filing and in accordance with Section 4(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 Shares shall have been issued and no proceeding for ~~that~~ any such purpose shall have been ~~instituted~~ initiated or ~~threatened.~~threatened by the Commission; (b) The ~~Company~~ Representatives shall have ~~requested and caused Weil, Gotshal~~ received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ~~LLP~~L.L.P., counsel for the Company, ~~to have furnished to the Representatives its opinions and negative assurance letter~~their opinion, ~~each~~ dated the Closing Date and addressed to the Representatives, ~~in a form reasonably acceptable~~ to the ~~Representatives.~~effect set forth in Annex I hereto; (c) The Representatives shall have received from ~~Ropes &~~ the General Counsel to the Company, his opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Annex II hereto; (d) The Representatives shall have received from ▇▇▇▇▇ ~~LLP~~▇▇▇▇▇ L.L.P., counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the ~~Securities~~Shares, the Registration Statement, the ~~Statutory Prospectus~~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 reasonably require and request for the purpose of enabling them to pass upon such matters.; (de) The Company shall have furnished to the Representatives a certificate of the Company, signed in their representative capacities by the Chief Executive Officer and ~~the principal financial or accounting officer~~ 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 each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and~~ that: (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~~ 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 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 Shares has been issued and no proceedings for that purpose have ~~been instituted or~~been, to the Company’s knowledge, ~~threatened~~instituted or threatened by the Commission; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Statutory Prospectus and~~ Final Prospectus, as amended or supplemented prior to the ~~Prospectus (exclusive of any supplement thereto)~~Execution Time, there has been no ~~Material Adverse Effect~~material adverse change in 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 ~~Statutory Prospectus and~~ Final Prospectus, as amended or supplemented prior to the ~~Prospectus (exclusive of any supplement thereto).~~Execution Time, or as described in such certificate; (ef) ~~The Company shall have requested and caused KPMG to have furnished to the Representatives, at~~ At the Execution Time and at the Closing Date, ~~letters,~~ the Representatives shall have received from Ernst & Young LLP a letter or letters dated ~~respectively as of the Execution Time and as of the Closing Date~~such date or dates, in form and substance reasonably satisfactory to the Representatives, ~~confirming that they are a registered public accounting firm that is independent~~ 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 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 29, 2020 (date of inception) through July 24, 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 certain financial ~~statement schedules included~~ information contained in the Registration Statement, the ~~Statutory Prospectus~~ Final Prospectus, the Disclosure Package and any Issuer Free Writing Prospectus; (g) At the Execution Time and the ~~Prospectus~~ Closing Date, the Representatives shall have received from NSAI a letter, in form and ~~reported on~~ substance reasonably satisfactory to the Representatives, addressed to the Underwriters covering the matters described in Annex III; (h) The Representatives shall have received an agreement for the benefit of the Underwriters in the form set forth as Annex IV hereto, signed by ~~them comply as to form~~ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and each director and executive officer listed in ~~all material respects~~ the Company’s Proxy Statement, filed with the ~~applicable accounting requirements of~~ Commission on April 17, 2014 (each a “Lock-Up Agreement”), other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or any such director or officer who has resigned before the ~~Act~~ Execution Time, and each such Lock-Up Agreement shall be in full force and effect on the ~~related rules and regulations adopted by the Commission; and~~Closing Date; (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. (fi) 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)~~as amended or supplemented prior to the Execution Time, the ~~Statutory~~ Final Prospectus ~~and~~ as amended or supplemented prior to the ~~Prospectus (exclusive of~~ Execution Time or any ~~supplement thereto)~~Issuer Free Writing Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 5 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 ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus and~~ Final Prospectus, as amended or supplemented prior to the ~~Prospectus (exclusive of any supplement thereto)~~ Execution Time, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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)~~Statement, the ~~Statutory~~ Final Prospectus and ~~the Prospectus (exclusive of~~ any ~~supplement thereto).~~Issuer Free Writing Prospectus; (gj) The Shares shall have been approved for listing on the New York Stock Exchange, subject only to notice of issuance at or prior to the Closing Date; and (k) 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) 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 ~~Representatives and counsel for the Underwriters~~Representatives, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. 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 sole 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 5 shall be delivered at to the ~~office~~ offices of ~~Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇~~ ▇▇▇▇▇▇ ~~▇▇ ▇▇▇~~ & ▇▇▇▇▇▇ L.L.P. at ▇~~▇▇, ▇▇▇ ▇▇▇▇,~~ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇~~, Attention: ▇▇▇▇ ▇. ▇▇▇▇~~▇, ~~unless otherwise indicated herein~~Dallas, Texas 75201 on the Closing Date, or such other place as the Representatives shall so instruct.

Appears in 1 contract

Sources: Underwriting Agreement (Pioneer Natural Resources Co)

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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ Akin Gump S▇▇▇▇▇▇ H▇▇▇▇ & F▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a customary form reasonably acceptable to the Representatives. (c) The Representatives shall have received from ~~Ropes~~ D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related customary matters as the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or 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: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 ~~KPMG~~ BDO to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance reasonably satisfactory to the Representatives, 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 29, 2020 (date of inception) through July 24, 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. (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 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the 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~~ Global 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 ~~Securities Assignment~~ Trust Agreement, the Forward Purchase Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription ~~Agreement~~ Agreement, the Registration Rights Agreement, the Insider Letter and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing ~~Date~~Date or any settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust ~~Account~~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 Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 ~~Ropes~~ D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇4▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: D▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 1 contract

Sources: Underwriting Agreement (Zimmer Energy Transition Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the ~~Underwritten Securities and the Option Securities, as the case may be,~~ Shares shall be subject to the accuracy in all material respects of the representations and warranties ~~on the part~~ of the Company contained herein ~~as of~~ at the ~~Execution Time,~~ date hereof and the ~~Closing Date and any Option~~ Closing Date, 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 respective obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~ (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to ~~have furnished~~ furnish to the ~~Representatives its opinions~~ Underwriters their opinion and negative assurance ~~letter~~statement, each dated the Closing Date and, if applicable, the Option Closing Date, and addressed to the ~~Representatives~~Underwriters and substantially in the form of Exhibits B and C hereto; (ii) Bartlit ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ~~in a form reasonably acceptable~~ special counsel to the ~~Representatives~~Company, to furnish to the Underwriters their opinion, dated the Closing Date and, if applicable, the Option Closing Date, and substantially in the form of Exhibit D hereto; and (iii) ▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President, General Counsel and Secretary of the Company and its subsidiaries, to furnish to the Underwriters his opinion dated the Closing Date and, if applicable, the Option Closing Date, and substantially in the form of Exhibit E hereto. (cb) The ~~Representatives~~ Underwriters shall have received from ~~Ropes~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and, if applicable, the Option Closing Date, and addressed to the ~~Representatives~~Underwriters, with respect to the issuance and sale of the ~~Securities, the Registration Statement, the Statutory Prospectus~~Shares, the Prospectus ~~(together with any supplement thereto)~~ and Registration Statement and other related matters as the ~~Representatives~~ Underwriters 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. (dc) The Company shall have furnished to the ~~Representatives~~ Underwriters a certificate of the Company, signed by (x) the ~~Chief Executive Officer~~ Chairman of the Board or the President and (y) the principal financial or accounting officer of the Company, dated the Closing Date and, if applicable, the Option Closing Date, to the effect that the signers of such certificate have carefully examined the ~~Registration Statement each Preliminary Prospectus, the~~ Prospectus and Registration Statement, any amendment or supplement ~~thereto,~~ to the Prospectus and Registration Statement and this Agreement and that: (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 the representations and warranties of the Company in this agreement that are qualified by materiality are true and correct, on and as of the Closing Date or the Option Closing Date, as the case may be, with the same effect as if made on the Closing ~~Date~~ Date, or the Option Closing Date, as the case may be, 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~~ , or the ~~effectiveness of~~ Option Closing Date, as 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~~case may be; and (~~iii~~ii) since the date of the most recent financial statements included in the ~~Statutory~~ Prospectus and the ~~Prospectus~~ Registration Statement (exclusive of any amendment or supplement thereto), there has been no ~~Material Adverse Effect~~material adverse change in the condition, ~~except~~ financial or otherwise, or in the earnings, business, properties or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in ~~or contemplated in the Statutory Prospectus and~~ the Prospectus (exclusive of any ~~supplement thereto~~amendments or supplements thereto subsequent to the date of this Agreement). (ed) ~~The~~ At the date hereof and at the Closing Date, the Company shall have requested and caused ~~KPMG~~ Ernst & Young LLP to ~~have furnished~~ furnish to the ~~Representatives~~Underwriters a “comfort” letter, at dated as of the ~~Execution Time and at~~ date hereof, a bring-down “comfort” letter, dated as of the Closing Date and, if applicable, the Option Closing Date, ~~letters~~and an “agreed-upon procedures” letter, dated ~~respectively as of the Execution Time and~~ as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Managers, confirming that ~~they are a~~ it is an independent 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 published rules and regulations ~~adopted by the Commission~~ thereunder and ~~that they have performed a review of~~ confirming certain matters with respect to the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 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~~ unaudited financial statements and other financial ~~statement schedules included~~ and accounting information contained 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”~~ . All references in ~~the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References~~ this Section 6(d) to the Prospectus ~~in this paragraph (e)~~ and Registration Statement include any amendment or supplement thereto at the date of the applicable letter. (e) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain shareholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. (f) Subsequent to the ~~Execution Time~~ execution and delivery of this Agreement and prior to the Closing Date or, if ~~earlier~~applicable, the ~~dates as of which information is given in the Registration Statement~~ Option Closing Date: (~~exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto),~~ i) there shall not have occurred any downgrading, nor shall any notice have been ~~(i)~~ given of any intended or potential downgrading or of any review for a possible change ~~or decrease specified~~ that does not indicate the direction of the possible change, in the ~~letter or letters referred to in paragraph (e~~rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) ~~of this Section 6 or~~ under the Securities Act; and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or ~~affecting~~ otherwise, or in the earnings, business, ~~management, properties, assets, rights, operations, condition (financial~~ properties or ~~otherwise) or prospects~~ results of operations of the ~~Company~~Company and its subsidiaries, ~~whether or not arising~~ taken as a whole, from ~~transactions in the ordinary course of business, except as~~ that set forth in ~~or contemplated in the Statutory Prospectus and~~ the Prospectus (exclusive of any ~~supplement thereto~~amendments or supplements thereto subsequent to the date of this Agreement) ~~the effect of which~~that, in ~~any case referred to in clause (i) or (ii) above~~your judgment, ~~is, in the sole judgment of the Representatives, so~~ is material and adverse as and that makes it, in your judgment, impracticable to ~~make it impractical or inadvisable to proceed with~~ market the ~~offering or delivery of~~ Shares on the ~~Securities as~~ terms and in the manner contemplated by in the ~~Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~Prospectus. (g) Prior to the Closing Date, or, if applicable, the Option Closing Date, the Company shall have furnished to the ~~Representatives~~ Underwriters such further information, certificates and documents as the ~~Representatives~~ Underwriters may reasonably request. (h) ~~FINRA~~ The Shares 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~~ been listed, subject to notice of ~~issuance~~ issuance, on the ~~Nasdaq Capital Market~~New York Stock Exchange, and satisfactory evidence of ~~which~~ such actions shall have been provided to the ~~Representatives~~Managers. (ji) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, ~~the Company will deliver to the Representatives executed copies of the Trust Agreement~~or, if applicable, the ~~Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the~~ Option Closing Date, the ~~Sponsor~~ Registration Statement shall ~~have caused the purchase price for the Private Placement Warrants to~~ be ~~deposited into the Trust Account. (l) No~~ effective; no stop order ~~preventing or~~ suspending the ~~sale~~ effectiveness of the ~~Units~~ Registration Statement shall be in ~~any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date~~effect, and no proceedings for ~~that~~ such purpose shall ~~have been instituted~~ be pending before or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed threatened by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesCommission. 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, ~~negative assurance letters~~ letters, evidence and certificates mentioned above ~~or elsewhere~~ in this ~~Agreement~~ Section 6 shall not be reasonably satisfactory in form and substance satisfactory to the ~~Representatives~~ Managers 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 or, if applicable, the Option Closing Date by the ~~Representatives~~Underwriters. 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~~ will be delivered at the office of ~~Ropes & ▇▇▇▇ LLP,~~ counsel for the ~~Underwriters~~Company, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein,~~ on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Foundation Coal Holdings, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten ~~Securities~~ Units and the Option ~~Securities~~Units, 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) [Reserved.] (d) The ~~Representatives~~ Representative shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by ~~the~~ one of its Chief Executive ~~Officer~~ Officers and ~~the~~ its principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (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 (as applicable) with the same effect as if made on the Closing Date 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 at or prior to the Closing ~~Date~~Date 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 and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) there has not occurred any Material Adverse Effect, or any development involving a prospective Material Adverse Effect, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~, there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~. (ef) The Company shall have requested and caused ~~KPMG~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~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 29~~January 7, ~~2020 (date~~ 2021(date of inception) through ~~July 24~~February 9, ~~2020~~2021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing ~~Date~~Date or settlement 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 (ef) include any supplement thereto at the date of the letter. (fg) 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 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) 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 (“FinCEN”) from the Company, in form and substance satisfactory to the Representative, along with such additional supporting documentation as the Representative has requested in connection with the verification of the foregoing certificate (i) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hj) 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. (ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq ~~Capital~~ Global Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jl) On or prior to the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Administrative Services Agreement, the Unit Subscription Agreement, the Insider ~~Letters~~ Letter, the Advisory Agreement and the Registration Rights Agreement. (km) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the Sponsor shall have caused the applicable purchase price for the Private Placement ~~Warrants~~ Units to be deposited into the Trust ~~Account~~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. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mo) The ~~several obligations of the Underwriters to purchase Option Securities hereunder are subject~~ Company shall have furnished to the ~~delivery to the Representatives on the applicable Option Closing Date of the following: (i)~~ Representative a certificate signed by the ~~Chief Executive Officer and~~ Secretary or the ~~principal financial or accounting officer~~ Assistant Secretary of the Company, dated the ~~Option~~ Closing Date, ~~confirming~~ certifying (i) that the ~~certificate delivered on~~ Amended and Restated Certificate of Incorporation and Bylaws of the ~~Closing Date pursuant to Section 6(d) hereof remains~~ Company are true and ~~correct as of such Option Closing Date;~~ complete, have not been modified and are in full force and effect, (ii) ~~opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for~~ that the ~~Company, dated the Option Closing Date,~~ resolutions relating to the ~~Option Securities to be purchased on such Option Closing Date~~ Offering contemplated by this Agreement are in full force and ~~otherwise to the same~~ effect ~~as the opinion required by Section 6(b) hereof;~~ and have not been modified, (iii) ~~opinions~~ copies of all correspondence between the Company or its counsel and ~~negative assurance letter of Ropes & ▇▇▇▇ LLP~~the Commission, ~~counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date~~ and ~~otherwise to the same effect as the opinion required by Section 6(c) hereof;~~ (iv) ~~a letter dated the Option Closing Date, in form and substance satisfactory~~ as to the ~~Representatives, from KPMG substantially~~ incumbency of the officers of the Company. The documents referred to in ~~the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date~~ such certificate shall ~~not~~ be ~~more than two business days prior~~ attached to such ~~Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities~~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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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, at ~~▇▇▇▇~~ 1211 Avenue of the ▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇ ~~▇▇▇~~▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Esq., unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 1 contract

Sources: Underwriting Agreement (Thunder Bridge Capital Partners IV, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten ~~Securities~~ Shares 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any 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 have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative their opinion or opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a the form and substance reasonably ~~acceptable~~ satisfactory to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, 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 the Representative. (d) The Company shall have requested and caused ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C., intellectual property 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 the Representative. (e) The Representative shall have received from ~~Ropes &~~ ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~letters, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the ~~Securities~~Shares, the Registration Statement, the ~~Statutory Prospectus~~Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (df) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the ~~Chief Executive Officer~~ 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 each Preliminary Prospectus~~Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic roadshow used in connection with the offering of the Shares, and this Agreement and that: (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 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 ~~Statutory Prospectus~~ Disclosure Package and the 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 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 ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any supplement thereto). (eg) The Company shall have requested and caused ~~KPMG~~ (i) CBIZ CPAs P.C. to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, and (ii) ▇▇▇▇▇▇ LLP to have furnished to the Representatives, at the Execution Time, a letter, dated as of the Execution Time, in each case in form and substance satisfactory to the Representatives, 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 29, 2020 (date of inception) through July 24, 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 letterRepresentative. (fh) 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 amendment or 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) ), earnings, business or ~~prospects~~ properties of the ~~Company~~Company and 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 ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (gi) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ 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~~j) The ~~Securities~~ Shares shall ~~be duly~~ have been listed ~~subject to notice of issuance~~ and admitted and authorized for trading on the Nasdaq ~~Capital~~ Global Market, and satisfactory evidence of ~~which~~ such actions shall have been provided to the ~~Representatives~~Representative. (jk) On FINRA, upon review, if any, of the ~~Effective Date~~terms of the public offering of the Shares, shall not have objected to such offering, such terms or the Underwriters’ participation in same. (l) Prior to the Execution Time, the Company shall have ~~delivered~~ furnished to the ~~Representatives executed copies~~ Representative a letter substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each officer and director of the ~~Securities Assignment Agreement,~~ Company listed on Schedule VI hereto addressed to the ~~Founder’s Purchase Agreement,~~ Representative. The Company will use its best efforts to enforce the ~~Warrant Subscription~~ terms of each Lock-Up Agreement and ~~the Administrative Services Agreement. On or prior~~ will issue stop-transfer instructions to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 transfer agent for the ~~Private Placement Warrants~~ Common Stock with respect to ~~be deposited into~~ any transaction or contemplated transaction that would constitute a breach of or default under 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(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatenedapplicable Lock-Up Agreement. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date Company shall not ~~be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request~~ have received an objection from the Nasdaq Global Market with respect to the ~~issuance~~ listing of ~~such Option Securities~~additional shares notification that it filed with the Nasdaq Global Market in connection with the Shares. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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 &~~ ▇▇▇▇▇▇▇ Procter, LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ~~▇▇ ▇▇▇ ▇▇~~▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇~~▇▇ ▇▇▇~~▇ ▇▇▇▇▇, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein~~or at such other place as shall be agreed upon by the Representative and the Company, on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (CorMedix Inc.)

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, the Closing Date and any ~~Option Closing 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~~ hereunder, including, if applicable, the last sentence of Section 3(b) hereof, and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~ Winston & ▇S▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Company shall have requested and caused Ogier, 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. (d) The Representative shall have received from ~~Ropes & ▇▇▇▇~~ Proskauer Rose LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative 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 Chief Executive Officer of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chief 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 each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect~~, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~. (eg) The Company shall have requested and caused ~~KPMG~~ M▇▇▇▇▇ to have furnished to the ~~Representatives~~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 ~~Representatives~~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 2924, ~~2020~~ 2021 (date of inception) through ~~July 24~~[•], ~~2020~~2022, 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 (eg) include any supplement thereto at the date of the letter. (fh) 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 (eg) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, ~~except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~ the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hj) 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. (ik) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~Nasdaq, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jl) On the ~~Effective Date~~date hereof, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives 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. (km) At least one Business Day prior to the Closing ~~Date~~Date or the settlement date, as applicable, the Sponsor shall have caused the ~~purchase price for the~~ Private Placement ~~Warrants~~ Portion to be deposited into the Trust ~~Account~~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 public offering as of such Closing Date or settlement date and $10.10 per Unit as set forth on the cover of the Prospectus. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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 & ▇▇▇▇~~ Proskauer Rose LLP, counsel for the Underwriters, at E▇▇▇▇▇ ▇▇▇▇▇▇ ~~▇▇ ▇▇▇ ▇▇~~▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: S▇▇▇▇▇ ▇. ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Aries II Acquisition Corp)

Appears in 1 contract

Sources: Underwriting Agreement (Legacy 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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~~ hereunder, including, if applicable, the last sentence of Section 4(c) hereof, and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Company shall have requested and caused ▇▇▇▇▇▇ & 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 a form reasonably acceptable to the Representatives. (d) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief 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~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or 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: (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 at or prior to ~~the Closing Date~~such 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) 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, among other things, (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 ~~KPMG~~ ▇▇▇▇▇▇ 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 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 29, 2020 (date of inception) through July 24, 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. (fh) 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 (eg) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) 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. (hj) 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. (ik) The Offered 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. (jl) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (km) At least one (1) Business Day prior to the Closing ~~Date~~Date or the settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust ~~Account~~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 issued in the public 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. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 1 contract

Sources: Underwriting Agreement (Silver Spike Acquisition Corp II)

Appears in 1 contract

Sources: Underwriting Agreement (Enphys 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Company shall have requested and caused Ogier, Cayman Islands 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. (d) The Representative shall have received from ~~Ropes &~~ P▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the 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 Statement and each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each road show used in connection with the Offering, and this Agreement and that: (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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ the Accountants to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the ~~Representatives~~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~~ March 29, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~April 9, ~~2020,~~ 2021; provided that the cutoff date shall not be more than two ~~business days~~ 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~~Section 7(f) include any supplement thereto at the date of the letter. (fg) 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~~Section 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date and any settlement date, as applicable, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) 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. (ij) The Offered Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider ~~Letters~~ Letter and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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 ~~Ropes &~~ P▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at P▇▇▇ ▇▇▇▇▇▇▇▇ LLP, 5▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ ~~▇▇▇~~▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: F▇▇▇▇ ▇. ▇▇▇▇ and J▇▇▇▇▇▇▇ ▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date and any settlement date, as applicable.

Appears in 1 contract

Sources: Underwriting Agreement (Infinite 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~~ Fund and the Advisers contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 4 hereof, to the accuracy of the statements of the ~~Company~~ Fund and the Advisers made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Fund or the Advisers of ~~its~~ their obligations hereunder and to the following additional conditions: (a) The ~~Prospectus,~~ Prospectus and any ~~supplement thereto,~~ supplements thereto have been filed in the manner and within the time period required by Rule ~~424(b)~~497; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or ~~threatened~~threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with in all material respects. (b) The ~~Company~~ Fund shall have requested and caused ~~Weil, Gotshal~~ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the ~~Company~~Fund, to have furnished to the Representatives its ~~opinions and negative assurance letter~~opinion, ~~each~~ dated the Closing Date and addressed to the Representatives, ~~in a form reasonably acceptable~~ substantially to the ~~Representatives~~effect set forth in Exhibit A. In rendering such opinion, such counsel may limit such opinion to matters involving the application of the laws of the State of Delaware, the State of New York and the federal laws of the United States. Such counsel may rely (A) as to matters involving the application of laws of the State of Delaware, to the extent they deem proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A. or other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Fund and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. (c) You shall have received on the Closing Date an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq., Chief Counsel of the Adviser, dated the Closing Date and addressed to you, as Representatives of the several Underwriters, substantially to the effect set forth in Exhibit B. In rendering such opinion, such counsel may limit such opinion to matters involving the application of the federal laws of the United States. Such counsel may rely (A) as to matters involving the application of the laws of the State of Arizona, to the extent such counsel deems proper and specified in such opinion, upon the opinion of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., or other counsel of good standing whom such counsel believes to be reliable and who are satisfactory to counsel for the Underwriters, (B) as to matters involving the application of laws of the State of New York, to the extent such counsel deems proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, or other counsel of good standing whom such counsel believes to be reliable and who are satisfactory to counsel for the Underwriters and (C) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Fund, the Adviser and public officials. References to the Prospectus in this paragraph (c) shall also include any supplements thereto at the Closing Date. (d) You shall have received on the Closing Date an opinion of [ ] [ING/SAB: please provide name], counsel for the Sub-Adviser, dated the Closing Date and addressed to you, as Representatives of the several Underwriters, substantially to the effect set forth in Exhibit C. In rendering such opinion, such counsel may rely (A) as to matters involving the application of the laws of any jurisdiction other than the laws of Hong Kong, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, (B) as to matters involving the application of the federal laws of the United States, on the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq., counsel to the Adviser, (C) as to matters involving the application of the laws of the State of New York, to the extent such counsel deems proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, (D) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Fund, the Sub-Adviser and public officials. References to the Prospectus in this paragraph (d) shall also include any supplements thereto at the Closing Date. (e) You shall have received on the Closing Date an opinion of [ ] [ING/SAB: please provide name], counsel for the Option Sub-Adviser, dated the Closing Date and addressed to you, as Representatives of the several Underwriters, substantially to the effect set forth in Exhibit D. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the laws of the Netherlands, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, (B) as to matters involving the application of the federal laws of the United States, on the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq., counsel to the Adviser, (C) as to matters involving the application of the laws of the State of New York, to the extent such counsel deems proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, (D) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Fund, the Option Sub-Adviser and public officials. References to the Prospectus in this paragraph (e) shall also include any supplements thereto at the Closing Date. (f) The Representatives shall have received from ~~Ropes~~ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus,~~ Preliminary Prospectus and the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the ~~Company~~ Fund and the Advisers shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (dg) ~~The Company~~ Each of the Fund and the Advisers shall have furnished to the Representatives a ~~certificate of the Company~~certificate, signed by the ~~Chief~~ Chairman of the Board or the President or Executive ~~Officer~~ Vice President and the principal financial or accounting officer of each of the ~~Company~~Fund and the Advisers, as the case may be, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement each~~ Statement, the Preliminary Prospectus and the Prospectus, ~~the Prospectus and~~ any ~~amendment~~ amendments or ~~supplement thereto,~~ supplements thereto and this Agreement and that: (i) ~~the~~ The representations and warranties of the ~~Company~~ Fund or the Advisers, as the case may be, 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~~ Fund or the Advisers, as the case may be, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no 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~~Fund’s or each of the Adviser’s knowledge, as the case may be, threatened; and (iii) ~~since~~ Since the date of the most recent financial statements included in the ~~Statutory Prospectus and the~~ Prospectus (exclusive of any supplement thereto) (with respect to the certificate of the Fund) and since the date of the Prospectus (exclusive of any supplements thereto) (with respect to the certificate of the Advisers), there has been no ~~Material Adverse Effect~~material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Fund or each of the Advisers, as the case may be, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory~~ Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto). (eh) The ~~Company~~ Fund shall have requested and caused KPMG LLP 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 they are ~~a registered public accounting firm that is~~ independent ~~with respect to the Company~~ accountants within the meaning of the Act and the ~~Exchange~~ 1940 Act and the ~~applicable rules~~ 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 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, Regulations and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, ~~the Statutory~~ Preliminary 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, the 1940 Act and the ~~related rules~~ Rules and ~~regulations adopted by the Commission~~Regulations; 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~~Fund) set forth in the Registration Statement, the ~~Statutory~~ Preliminary Prospectus and the Prospectus, including the information set forth under the captions “~~Dilution” and “Capitalization~~Summary of Fund Expenses” in ~~the Statutory Prospectus and~~ the Prospectus, agrees with the accounting records of the ~~Company~~Fund, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eh) include any supplement thereto at the date of the letter. (fi) 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 material change ~~or decrease~~ specified in the letter or letters referred to in paragraph (eg) 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) ), prospects, earnings, business or ~~prospects~~ properties of the ~~Company~~Fund and each of the Advisers, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory~~ Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 ~~Statutory~~ Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto). (gj) 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) Prior to the Closing Date, the ~~Company~~ Fund and the Advisers shall have furnished to the Representatives such further information, certificates and documents as the 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. Notice of such cancellation shall be given to the ~~Company~~ Fund in writing or by telephone or facsimile confirmed in writing. . (m) The documents required to be delivered by this Section 6 7 shall be delivered at the office of ~~Ropes~~ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein,~~ on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (ING Asia Pacific High Dividend Equity Income Fund)

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, the Closing Date and any ~~Option Closing 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) shall have been filed with the 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 ~~Weil, Gotshal~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives ~~its opinions~~ their opinion and ~~negative assurance letter~~10b-5 statement, ~~each~~ dated the Closing Date and addressed to the Representatives, in a form and substance reasonably ~~acceptable~~ satisfactory to the Representatives. (c) The Company shall have requested and caused ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian 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 Representatives shall have received from ~~Ropes~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and ~~negative assurance letter~~10b-5 statement, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to ~~the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related~~ such matters as the Representatives may reasonably ~~require~~request, 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. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the 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 each Preliminary Prospectus~~Statement, the Disclosure Package, the Final Prospectus and any ~~amendment~~ amendments or ~~supplement~~ supplements 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 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 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 knowledge of the Company~~’s knowledge~~, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no ~~Material Adverse Effect~~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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ PricewaterhouseCoopers LLP, as independent public accounting firm for the Company, to have furnished to the Representatives, at the Execution Time and at the Closing Date, ~~letters~~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 reasonably satisfactory to the Representatives, confirming that they are ~~a registered public accounting firm that is~~ independent ~~with respect to the Company~~ accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the ~~Commission thereunder~~ SEC thereunder. (g) The Company shall have requested and ~~that they~~ caused PricewaterhouseCoopers LLP, as independent public accounting firm for ▇▇▇▇▇▇ Gold LLC, to have ~~performed a review of~~ furnished to the ~~audited financial statements of~~ Representatives, at the ~~Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such~~ Execution Time or and at the Closing Date, ~~as applicable, and stating in effect that:~~ letters (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 which may refer to ~~form in all material respects with the applicable accounting requirements~~ 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 reasonably satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Securities Act and the ~~related~~ Exchange Act and the applicable 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 letterSEC thereunder. (fh) 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 Final 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) ), earnings, business or ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ 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 Representatives, 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (gi) 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. (hj) ~~FINRA~~ To the extent the Company has any debt securities rated by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act), subsequent to the Execution Time, there shall not have ~~raised~~ been any ~~objection with respect to~~ decrease in any such rating 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 ~~fairness or reasonableness~~ direction of the ~~underwriting or other arrangements of the transactions contemplated hereby~~possible change. (ik) The Securities shall ~~be duly~~ have been listed ~~subject to notice of issuance~~ and admitted and authorized for trading on the ~~Nasdaq Capital Market~~NYSE American and the Toronto Stock Exchange, and satisfactory evidence of ~~which~~ such actions shall have been provided to the Representatives. (jl) On At the ~~Effective Date~~Execution Time, the Company shall have ~~delivered~~ furnished to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter ~~dated~~ substantially in the ~~Option Closing Date,~~ form of Exhibit A hereto from each party listed in ~~form and substance satisfactory~~ Schedule V hereto addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein,~~ on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Novagold Resources Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Turmeric 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section ‎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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes &~~ ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (d) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the 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 Statement and each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each road show used in connection with the Offering, and this Agreement and that: (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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 ~~KPMG~~ Withum to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the ~~Representatives~~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 2912, 2020 (~~date of~~ inception) through ~~July 24~~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 ~~paragraph (e~~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 ~~paragraph (e~~Section ‎7(e) ~~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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date and any settlement date, as applicable, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ 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 ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider ~~Letters~~ Letter and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing ~~Date~~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 ~~Representatives~~ Representative pursuant to Section ~~5(g~~‎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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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 ~~Ropes &~~ ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date and any settlement date, as applicable.

Appears in 1 contract

Sources: Underwriting Agreement (GO Acquisition Corp.)

Appears in 1 contract

Sources: Underwriting Agreement (Fortress Value Acquisition Corp. 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 and the Selling Shareholders contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~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 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 &~~ ▇▇▇▇▇▇▇ Coie LLP, counsel for the Company, to have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative their opinion, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form ~~reasonably acceptable~~ satisfactory to the ~~Representatives~~Representative. (c) The ~~Representatives~~ 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 satisfactory to the Representative. (d) The Representative shall have received from ~~Ropes~~ Fenwick & ~~▇▇▇▇~~ West LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the ~~Chief Executive Officer~~ 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 each Preliminary Prospectus~~Statement, the Disclosure Package, the Final 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 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 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (ef) 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 ~~KPMG~~ Ernst & Young LLP to have furnished to the ~~Representatives~~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 Representatives, 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 29, 2020 (date of inception) through July 24, 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:Representative. (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. (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 Final 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 (ef) 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 ~~prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ 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 ~~Representatives~~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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (gj) Prior to the Closing Date, the Company and the Selling Shareholders shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hk) ~~FINRA shall not have raised any objection with respect to~~ At 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 DateExecution Time, the Company shall have ~~delivered~~ furnished to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) Representative a letter ~~dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG~~ substantially in the ~~same~~ form of Exhibit A hereto from each officer and ~~substance as~~ director of the ~~letter furnished~~ Company (including any estate or charitable entities affiliated with such officers or directors) each Selling Shareholder addressed to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesRepresentative. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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 ~~Ropes~~ Fenwick & ~~▇▇▇▇~~ West LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇~~, ▇▇▇~~ ▇▇▇▇ ▇▇▇▇▇, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein,~~ on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Zillow Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Kairos 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 and the Selling Shareholders contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~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 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 &~~ ▇▇▇▇▇▇▇ Coie LLP, counsel for the Company, to have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative their opinion, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form ~~reasonably acceptable~~ satisfactory to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Selling Shareholders shall have requested and caused (i) DLA Piper LLP (US), counsel for the Selling Shareholders and (ii) ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Cayman Islands counsel for the Selling Shareholder that is a Cayman Islands exempted limited partnership, to have furnished to the Representative their opinion dated the Closing Date and addressed to the Representative, in a form satisfactory to the Representative. (d) The Representative shall have received from ~~Ropes~~ Fenwick & ~~▇▇▇▇~~ West LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the ~~Chief Executive Officer~~ 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 each Preliminary Prospectus~~Statement, the Disclosure Package, the Final 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 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 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (ef) Each Selling Shareholder shall have furnished to the Representative a certificate, signed by (or on behalf of) 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 ~~KPMG~~ Ernst & Young LLP to have furnished to the ~~Representatives~~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 Representatives, 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 29, 2020 (date of inception) through July 24, 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:Representative. (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. (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 Final 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 (eh) 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 ~~prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ 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 ~~Representatives~~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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (gj) Prior to the Closing Date, the Company and the Selling Shareholders shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hk) ~~FINRA shall not have raised any objection with respect to~~ At 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 DateExecution Time, the Company shall have ~~delivered~~ furnished to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) Representative a letter ~~dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG~~ substantially in the ~~same~~ form of Exhibit A hereto from each officer and ~~substance as~~ director of the ~~letter furnished~~ Company (including any estate or charitable entities affiliated with such officers or directors) and each Selling Shareholder addressed to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesRepresentative. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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 ~~Ropes~~ Fenwick & ~~▇▇▇▇~~ West LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇~~, ▇▇▇~~ ▇▇▇▇ ▇▇▇▇▇, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein,~~ 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~ Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (d) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (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 (as applicable) with the same effect as if made on the Closing Date 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 at or prior to the Closing ~~Date~~Date 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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 furnished to the Representative a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying 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, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ ▇▇▇▇▇▇ to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~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~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020~~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~~Date or settlement 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 (ef) include any supplement thereto at the date of the letter. (fg) 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 (ef) 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) 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. (ij) 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~~Representative. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Administrative Services Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representative has requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 1 contract

Sources: Underwriting Agreement (South Mountain Merger 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,~~ Time and the ~~Closing Date and any Option~~ Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions ~~hereof~~of this Section, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The ~~Prospectus, and any supplement thereto,~~ Final Prospectus shall have been filed in with the ~~manner and~~ Commission pursuant to Rule 424(b) under the Act within the applicable time period ~~required by Rule 424(b)~~prescribed for such filing 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 ~~Weil, Gotshal~~ S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives ~~its opinions~~ their opinion and ~~negative assurance~~ letter, ~~each~~ dated the Closing Date and addressed to the Representatives, substantially in a the form ~~reasonably acceptable~~ attached hereto as Annex B; (c) The Company shall have requested and caused M▇▇▇▇▇▇▇ T▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives., with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, substantially in the form attached hereto as Annex C. (cd) The Representatives shall have received from ~~Ropes &~~ B▇▇▇▇ ~~LLP~~B▇▇▇▇ L.L.P., U.S. counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the ~~Statutory Prospectus, 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.; (de) 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 Representatives a certificate of the Company, signed by ~~the Chief Executive Officer and the principal financial or accounting officer~~ two of ~~the Company~~its senior officers, dated the Closing Date, to the effect that the signers of such certificate have ~~carefully examined~~ reviewed the Registration ~~Statement each Preliminary~~ Statement, the Disclosure Package, the Final Prospectus, any supplements to the ~~Prospectus and any amendment or supplement thereto~~Final Prospectus, and this ~~Agreement~~ Agreement, and ~~that~~to the best knowledge of such 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 and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing 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, ~~threatened~~threatened 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 ~~Statutory Prospectus~~ 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).; (ei) The ~~Company~~ Representatives shall have ~~requested and caused KPMG to have furnished to~~ received from PricewaterhouseCoopers LLP, the ~~Representatives~~Company’s independent auditor, a letter or letters dated 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 reasonably satisfactory to the Representatives, ~~confirming that they are a registered public accounting firm that is independent~~ 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 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 29, 2020 (date of inception) through July 24, 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 certain financial ~~statement schedules included~~ information contained in the Registration Statement, the ~~Statutory Prospectus~~ 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; andFinal Prospectus; (iij) 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[Reserved.] (fk) 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~~ thereto) and the Disclosure Package and the Final 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~~ paragraphs (ei) and (j) 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 ~~prospects~~ properties of the ~~Company~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~ the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 ~~thereof~~thereto), the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).; (gl) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by Standard & Poors Rating Services, M▇▇▇▇’▇ Investor Services or Dominion Bond Rating Service Limited and no such rating 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 the Company or any of the Company’s debt securities or preferred stock; (m) 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) FINRA shall not have raised any objection with respect~~ request and as is customary in offerings of securities similar 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 ~~Representatives. 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 ~~Ropes~~ S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, ~~counsel for the Underwriters, at~~ Attention: R▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, 1▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇~~▇, Attention: ▇▇▇~~▇ ~~▇. ▇▇▇▇▇, unless otherwise indicated herein,~~ on the Closing ~~Date~~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

Sources: Underwriting Agreement (Enbridge 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 its opinions ~~and negative assurance letter, each~~ 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 ~~Ropes &~~ ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the 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 Statement and each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each road show used in connection with the Offering, and this Agreement and that: (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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, 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 29~~January 19, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~February 9, ~~2020,~~ 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~~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 ~~paragraph (e~~Section 7(e) ~~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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the 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 Offered Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreements, the Warrant Subscription Agreement, the Insider ~~Letters~~ Letter and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing ~~Date~~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 Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 ~~Ropes &~~ ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇~~▇ ▇.~~ ▇▇▇▇▇ ▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date and any settlement date, as applicable.

Appears in 1 contract

Sources: Underwriting Agreement (N2 Acquisition Holdings 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, the Closing Date and any ~~Option Closing 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~~ their obligations hereunder and to the following additional conditions: (a) ~~The~~ If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any ~~supplement thereto~~such supplement, ~~have been~~ will be filed in the manner and within the time period required by Rule 424(b); 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 ~~its opinions and negative assurance letter~~their opinion, ~~each~~ dated the Closing Date and addressed to the Representatives, in a the form ~~reasonably acceptable~~ attached hereto as Exhibit A. (c) The Company shall have requested and caused ▇▇▇▇ ▇▇▇▇▇ LLP, tax 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 B. (cd) The 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 ~~Ropes &~~ ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to ~~the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related~~ such 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. (df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or the President and the 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 each Preliminary~~ Statement, the Prospectus, any supplements to the Prospectus, the ~~Prospectus and any amendment or supplement thereto,~~ Disclosure Package and this Agreement and that: (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 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 ~~knowledge~~Knowledge, threatened~~; and~~; (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ Prospectus, and ~~the 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 business, financial condition, results of operations, management, properties or 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 ~~Statutory Prospectus~~ Disclosure Package and the Prospectus; and (iv) they have carefully examined the Disclosure Package and the Prospectus and, in their opinion (~~exclusive~~ 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 ~~thereto)~~or amendment to the Disclosure Package and the Prospectus. (eg) The Company shall have requested and caused ~~KPMG~~ Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, ~~letters~~a letter, 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 a~~ 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 ~~accounting firm that is independent with respect to~~ offerings as contemplated in the ~~Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and~~ Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of ~~the audited~~ any unaudited interim financial ~~statements~~ information of the Company ~~for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time~~ included or ~~Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included~~ incorporated by reference in the Registration Statement, the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus ~~and reported~~ in accordance with Statement 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 interpretationAuditing Standards No. 100. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter. (fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given or incorporated by reference 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 (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings~~business, ~~business~~financial condition, results of operations, management, ~~properties, assets, rights, operations, condition (financial or otherwise)~~ properties or prospects of the ~~Company~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~ the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus~~ ) and the Prospectus (exclusive of any supplement thereto). (gi) 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. (hj) 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 or and reasonableness of the ~~underwriting or other~~ terms and 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 Securities Assignment under this Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) hereof~~ The Company shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives on a letter in the ~~applicable Option Closing Date~~ form of ~~the following: (i) a certificate signed by the Chief Executive Officer~~ Exhibit D hereto from each director and ~~the principal financial or accounting~~ executive officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially Company named in the ~~same form~~ Registration Statement and ~~substance as~~ the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesProspectus. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 &~~ ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein,~~ on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (LTC Properties Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Investindustrial Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters ~~to purchase the Underwritten Securities and the Option Securities, as the case may be,~~ under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company ~~contained~~ and the Selling Stockholders herein set forth as of the ~~Execution Time, the Closing Date~~ date hereof and ~~any Option~~ as of each Closing Date, to the accuracy of the statements of the ~~Company~~ Company’s officers, the Selling Stockholders and the Attorneys-in-Fact on behalf of 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~~ hereunder, and to the following additional conditions, unless waived in writing by the Representatives: (a) ~~The Prospectus,~~ All filings required by Rules 424(b) and ~~any supplement thereto,~~ 430A under the Act shall have been ~~filed in the manner and within the time period required by Rule 424(b)~~timely made; ~~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~~ by the Commission or ~~threatened. (b) The Company shall have requested and caused Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company~~any state securities commission nor, to ~~have furnished to~~ the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate knowledge of the Company, signed by the Chief 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 each Preliminary Prospectus, the Prospectus and shall any amendment or supplement thereto, and this Agreement and that: (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 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,~~ initiated or threatened; ~~and (iii) since the date~~ and any request of the ~~most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive~~ Commission or any state securities commission for inclusion of any supplement thereto), there has been no Material Adverse 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 KPMG 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 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 29, 2020 (date of inception) through July 24, 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 additional information in the Registration Statement, or otherwise, shall have been complied with to the ~~Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements~~ reasonable satisfaction 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 letterRepresentatives. (fb) ~~Subsequent to the Execution Time or, if earlier,~~ Since the dates as of which information is given in the Registration ~~Statement~~ Statement: (~~exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto),~~ i) there shall not have ~~been (i)~~ occurred any change or ~~decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change~~development involving, or ~~any development involving~~ which could be expected to involve, a ~~prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company~~Material Adverse Effect, whether or not arising from transactions in the ordinary course of business; and (ii) the Company shall not have sustained any loss or interference from any labor dispute, ~~except as set forth in~~ strike, fire, flood, windstorm, accident or ~~contemplated in the Statutory Prospectus and the Prospectus~~ other calamity (~~exclusive of~~ whether or not insured) or from any ~~supplement thereto)~~ court or governmental action, order or decree, the effect of ~~which~~which on the Company, in any such case ~~referred to~~ described in clause (i) or (ii) above, ~~is,~~ is in the ~~sole judgment~~ opinion of the ~~Representatives,~~ Representatives so material and adverse as to make it ~~impractical~~ impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Securities as~~ Shares on the terms and in the manner contemplated by in the Registration Statement ~~(exclusive of any amendment thereof), the Statutory Prospectus~~ and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (gc) ~~Prior to the Closing Date, the Company shall have furnished to the~~ The Representatives ~~such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA~~ shall not have ~~raised any objection with respect to~~ advised the ~~fairness~~ Company that the Registration Statement or ~~reasonableness~~ the Prospectus contains an untrue statement of fact that, in the reasonable opinion of the ~~underwriting~~ Representatives 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, ~~dated the Option Closing Date~~is material, ~~relating~~ or omits to ~~the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv)~~ state a ~~letter dated the Option Closing Date~~fact that, in ~~form and substance satisfactory to~~ the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any reasonable opinion of the ~~conditions specified in this Section 6 shall not have been fulfilled when~~ Representatives or such counsel, is material and as provided in this Agreement, or if any of the opinions, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents is required to be ~~delivered by this Section 6~~ stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall ~~be delivered at the office~~ have received an opinion of ~~Ropes &~~ ▇▇▇~~▇ LLP, counsel for the Underwriters, at~~ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ Van Deuren s.c., counsel for the Company, addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, substantially to the effect that, subject to the qualifications and assumptions set forth therein: (i) The Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of its jurisdiction of incorporation, with full corporate power and corporate authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; the Company is duly qualified to do business as a foreign corporation under the laws of, and is in good standing as such in, each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a Material Adverse Effect; (ii) The authorized capital stock of the Company consists of 28,000,000 shares of Common Stock, par value $0.01 per share, and all such stock conforms in all material respects as to legal matters to the descriptions thereof contained in or incorporated by reference into the Prospectus and the Registration Statement; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the issuance and sale of the Shares to be sold by the Company hereunder have been duly authorized and validly issued, are fully paid and nonassessable, and, to such counsel’s knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and to, such counsel’s knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) Except for the Subsidiaries, to such counsel’s knowledge, the Company has no subsidiaries, and the Company does not own any equity interest in or control, directly or indirectly, any other corporation, limited liability company, partnership, joint venture, association, trust or other business organization except as described in the Prospectus and the Registration Statement; each Subsidiary (other than RCE Holdings, LLC, RC2 (H.K.) Limited, Racing Champions Worldwide Limited, Racing Champions International Limited, Bondco 988 Limited, Acre 689 Limited, Learning Curve Deutschland GmbH, RC2 Canada Corporation, RC2 Australia Pty. Ltd. and LCI (H.K.) Limited) has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with full corporate power and corporate authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; RCE Holdings, LLC has been duly formed and is validly existing as a limited liability company in good standing under the laws of its jurisdiction of formation, with full limited liability company power and limited liability company authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; each Subsidiary (other than RC2 (H.K.) Limited, Racing Champions Worldwide Limited, Racing Champions International Limited, Bondco 988 Limited, Acre 689 Limited, Learning Curve Deutschland GmbH, RC2 Canada Corporation, RC2 Australia Pty. Ltd. and LCI (H.K.) Limited) is duly qualified to do business as a foreign corporation under the laws of, and is in good standing as such in, each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a Material Adverse Effect; the issued and outstanding shares of the capital stock of each Subsidiary (other than RC2 (H.K.) Limited, Racing Champions Worldwide Limited, Racing Champions International Limited, Bondco 988 Limited, Acre 689 Limited, Learning Curve Deutschland GmbH, RC2 Canada Corporation, RC2 Australia Pty. Ltd. and LCI (H.K.) Limited) have been duly authorized and validly issued, are fully paid and nonassessable and, to such counsel’s knowledge, there are no preemptive, preferential or other rights to subscribe for or purchase any shares of capital stock of any Subsidiary (other than RC2 (H.K.) Limited, Racing Champions Worldwide Limited, Racing Champions International Limited, Bondco 988 Limited, Acre 689 Limited, Learning Curve Deutschland GmbH, RC2 Canada Corporation, RC2 Australia Pty. Ltd. and LCI (H.K.) Limited), and to such counsel’s knowledge, no shares of capital stock of any Subsidiary have been issued in violation of such rights; the Company owns directly or indirectly and, to such counsel’s knowledge, beneficially all of the issued and outstanding capital stock of each Subsidiary, free and clear, to such counsel’s knowledge, of any and all liens, claims, encumbrances and security interests, except for pledges to the Company’s bank lenders; (v) The certificates for the Shares to be delivered hereunder are in due and proper form and conform in all material respects to the requirements of applicable law; and when duly countersigned by the Company’s transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares to be sold by the Company represented thereby will be duly authorized and validly issued, fully paid and nonassessable, and, to such counsel’s knowledge, free of any preemptive, preferential or other rights to subscribe for or purchase shares of Common Stock; (vi) The Registration Statement has become effective under the Act, and to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or are threatened under the Act or any Blue Sky Laws; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference in the Registration Statement, (except for the financial statements and other statistical or financial data included therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Rule 415 of the Rules and Regulations and Form S-3, set forth in the General Instructions thereto, have been satisfied; to such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened, including, without limitation, any such proceedings that are related to environmental or employment discrimination matters, required to be described in the Registration Statement or the Prospectus which are not so described or which question the validity of this Agreement or any action taken or to be taken pursuant thereto, nor to such counsel’s knowledge is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference, as required; (vii) The Company has full corporate power and corporate authority to enter into and perform this Agreement; the performance of the Company’s obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution may be limited by applicable law and except as enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States or other country or jurisdiction having jurisdiction over the Company is required for the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated by this Agreement (except for compliance with the Act and the Exchange Act); (viii) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Certificate of Incorporation or By-laws of the Company or any Subsidiary (other than RC2 (H.K.) Limited, Racing Champions Worldwide Limited, Racing Champions International Limited, Bondco 988 Limited, Acre 689 Limited, Learning Curve Deutschland GmbH, RC2 Canada Corporation, RC2 Australia Pty. Ltd. and LCI (H.K.) Limited); (B) violate any provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or any Subsidiary is a party or by which the Company or such Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, writ, judgment, decree, or regulation known to such counsel to which the Company is subject of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States or other country or jurisdiction having jurisdiction over the Company or any Subsidiary (assuming compliance with all applicable federal and state securities laws); (ix) To such counsel’s knowledge, except as described in or incorporated by reference into the Prospectus, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (x) The Common Stock is a National Market security on Nasdaq and is registered under the Exchange Act; (xi) The Shares to be issued and sold by the Company pursuant to this Agreement have been approved for listing upon official notice of issuance by Nasdaq; (xii) Neither the Company nor any Subsidiary is an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended, and, upon its receipt of any proceeds from the sale of the Shares, the Company will not become or be deemed to be an “investment company” thereunder; and (xiii) The description or incorporation by reference in the Registration Statement and the Prospectus of statutes, law, regulations, legal and governmental proceedings, and contracts and other legal documents described therein or incorporated by reference present fairly, in all material respects, the information required to be included therein by the Act. In addition, such counsel shall state that, although such counsel has not independently determined the accuracy and completeness of or otherwise verified, and is not passing upon and assumes no responsibility for, the accuracy or completeness of, the statements contained in the Registration Statement or the Prospectus, such counsel has generally reviewed and discussed the contents of the Registration Statement and Prospectus with certain officers of the Company, representatives of the Company’s independent public accountants and the Representatives. In the course of such review and discussions and in connection with such counsel’s services as counsel to the Company, nothing has come to such counsel’s attention which causes such counsel to believe that the Registration Statement, including any document incorporated by reference in the Registration Statement, as of the time it became effective under the Act, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus, as of its date and the date hereof, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that the foregoing statement does not apply to the financial statements and other financial and statistical information contained therein as to which such counsel may express no belief). In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and of governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Van Deuren s.c., ~~▇▇▇ ▇▇▇▇~~counsel for the Selling Stockholders, ~~▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on~~ dated the Second Closing Date., substantially to the effect that, subject to the qualifications and assumptions set forth therein: (i) The Power of Attorney has been duly authorized, executed and deliv

Appears in 1 contract

Sources: Underwriting Agreement (Rc2 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~ Ropes & ▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (d) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (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 (as applicable) with the same effect as if made on the Closing Date 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 at or prior to the Closing ~~Date~~Date 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 furnished to the Representative a certificate signed by the Chief Operating Officer of the Company, dated the Closing Date, certifying 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, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ WithumSmith to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~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~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020,~~ Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement 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 (ef) include any supplement thereto at the date of the letter. (fg) 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 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any 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 ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) 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. (ij) 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~~Representative. (jk) On the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, the CAVU Purchase Agreement, the Insider ~~Letters~~ Letter and the Registration and Stockholder Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished~~ Representative has requested in connection with the verification of the foregoing certificate. (o) On the Closing Date, the Company shall deliver evidence satisfactory to the ~~Underwriters pursuant to Section 6(e) hereof; provided~~ Representative that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesConcurrent CAVU Private Placement has been consummated. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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~~ in electronic format to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, ~~at ▇▇▇▇ ▇~~Attention: ▇▇▇▇▇ ▇~~▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇.~~ ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 1 contract

Sources: Underwriting Agreement (HumanCo Acquisition Corp.)

Appears in 1 contract

Sources: Underwriting Agreement (MELI Kaszek Pioneer 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 &~~ K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions dated the Closing Date or settlement date (as applicable) and ~~negative assurance letter~~addressed to the Representative, ~~each~~ in a form reasonably acceptable to the Representative. (c) The Company shall have requested and caused M▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the ~~Representatives,~~ Representative in a form ~~reasonably~~ and substance acceptable to the ~~Representatives~~Representative. (cd) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ 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. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (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 (as applicable) with the same effect as if made on the Closing Date 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 at or prior to the Closing ~~Date~~Date 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have furnished to the Representative a certificate signed by the Chief Operating Officer of the Company, dated the Closing Date, certifying that the Charter is true and complete, have not been modified and are in full force and effect, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and 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 ~~KPMG~~ M▇▇▇▇▇ to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~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~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020,~~ Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement 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(f) include any supplement thereto at the date of the letter. (fh) 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 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any 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 ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hj) 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. (ik) 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~~Representative. (jl) On the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Private Placement Warrants Purchase Agreement, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Services Agreement. (km) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (ln) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mo) ~~The several obligations~~ On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representative has requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the ~~Representatives~~ 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 ~~Representatives~~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 Ropes~~ in electronic format to D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at Attention: D▇▇▇▇ ▇~~▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇.~~ ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 1 contract

Sources: Underwriting Agreement (Corazon Capital V838 Monoceros Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten Securities~~ Firm Units and the ~~Option Securities~~Optional Units, 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, the Closing Date and any ~~Option Closing 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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~~L.L.P., counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from ~~Ropes~~ Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the ~~Securities~~Units, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (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 (as applicable) with the same effect as if made on the Closing Date 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 at or prior to the Closing ~~Date~~Date 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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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 ~~KPMG~~ WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, 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 29~~May 10, ~~2020~~ 2019 (~~date of~~ inception) through ~~July 24~~May 16, ~~2020~~2019, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing ~~Date~~Date or settlement 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. (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 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the ~~Securities~~ Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the 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~~ Units shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~NYSE, 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 Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company 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 Representatives pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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~~ Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ~~▇▇ ▇▇▇ ▇▇~~▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇~~▇▇ ▇▇▇~~▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 1 contract

Sources: Underwriting Agreement (Switchback Energy 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 and the Manager contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager 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~~ At the Closing Date, the Representatives shall have ~~requested~~ received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP, DLA Piper LLP (US) and ~~caused Weil~~▇▇▇▇▇▇▇, ~~Gotshal~~ ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇~~▇ LLP~~▇▇▇, L.L.C., counsel for the ~~Company~~Company and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A, Exhibit B and Exhibit C hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to ~~have furnished~~ the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the ~~Representatives its opinions~~ extent they deem proper, on certificates of responsible officers of the Company and ~~negative assurance letter, each dated~~ public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing ~~Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives~~Date. (c) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the 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 each Preliminary Prospectus~~Statement, the Disclosure Package, the Final Prospectus and any ~~amendment~~ supplements or ~~supplement~~ amendments 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 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 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 ~~Statutory Prospectus~~ 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has 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 the representations and warranties of the Manager 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. (f) The Company shall have requested and caused ~~KPMG~~ Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, ~~letters~~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 a registered public accounting firm that is independent~~ containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters 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 29, 2020 (date of inception) through July 24, 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 certain financial ~~statement schedules included~~ information contained or incorporated by reference 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 Disclosure Package 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. (fg) 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 Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) 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 ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ 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 Representatives, 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (gh) 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. (hi) ~~FINRA shall not have raised any objection with respect~~ Prior to the ~~fairness or reasonableness of~~ Closing Date, the ~~underwriting or other arrangements of the transactions contemplated hereby. (i) The~~ Securities shall ~~be duly~~ have been listed ~~subject to notice of issuance~~ and admitted and authorized for trading on the ~~Nasdaq Capital Market~~New York Stock Exchange, and satisfactory evidence of ~~which~~ such actions shall have been provided to the Representatives. (j) On At the ~~Effective Date~~Execution Time, the Company shall have ~~delivered~~ furnished to the Representatives ~~executed copies~~ a letter substantially in the form of Exhibit D hereto from (i) each officer and director of the ~~Securities Assignment Agreement~~Company (other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇), (ii) each officer of the ~~Founder’s Purchase Agreement~~Manager, ~~the Warrant Subscription Agreement~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ~~the Administrative Services Agreement. On or prior~~ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ and (iii) SPT Investment, LLC, in each case addressed to the ~~Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement~~Representatives. (k) At ~~least one Business Day prior to~~ the ~~Closing Date~~Execution Time, the ~~Sponsor~~ Company 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives on a letter substantially in the ~~applicable Option Closing Date~~ form of ~~the following:~~ Exhibit E hereto from (i) ~~a certificate signed by~~ the ~~Chief Executive Officer~~ Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) ~~opinions and negative assurance letter of Weil, Gotshal &~~ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date▇▇, in ~~form and substance satisfactory~~ each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ~~▇▇▇~~▇ ▇▇▇▇▇▇ ~~▇▇ ▇▇▇ ▇▇~~▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇~~, Attention: ▇▇▇▇ ▇.~~ -▇▇▇▇~~▇, unless otherwise indicated herein~~, on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Starwood Property Trust, Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Prime Impact Acquisition I)

Appears in 1 contract

Sources: Underwriting Agreement (Double Eagle 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, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); 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 its opinions ~~and negative assurance letter, each~~ 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 Company shall have requested and caused ▇▇▇▇▇▇▇, 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 ~~Ropes &~~ ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, 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 request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the 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 Statement and each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each road show used in connection with the Offering, and this Agreement and that: (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 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ the Accountants to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, 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 29~~February 2, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~February 4, ~~2020,~~ 2021; provided that the cutoff date shall not be more than two ~~business days~~ 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~~Section 7(f) include any supplement thereto at the date of the letter. (fg) 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~~Section 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) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) 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. (ij) The Offered Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~Nasdaq, satisfactory evidence of which shall have been provided to the Representatives. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription ~~Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust~~ Agreement, the ~~Warrant Agreement~~Forward Purchase Agreements, the Insider ~~Letters~~ Letter and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~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. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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 ~~Ropes &~~ ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇, unless otherwise indicated herein, on the Closing ~~Date~~Date and any settlement date, as applicable.

Appears in 1 contract

Sources: Underwriting Agreement (Artisan 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,~~ Time and the ~~Closing Date and any Option~~ Closing Date, 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 required to be performed at or prior to the Closing Date 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 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~~ of objection of the Commission to ~~its~~ the use of the Registration Statement 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 ~~Weil~~Skadden, ~~Gotshal &~~ Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives ~~its opinions and negative assurance letter~~their opinion, ~~each~~ dated the Closing Date and addressed to the Representatives, in a the form ~~reasonably acceptable to~~ agreed upon by the ~~Representatives~~parties. (c) The Representatives shall have received from ~~Ropes~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the ~~Statutory Prospectus~~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 reasonably request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the ~~Chief Executive Officer~~ Chairman of the Board, the Vice Chairman of the Board or the President of the Company and (y) the principal financial or accounting officer of the Company, provided that the signers of such certificate pursuant to clauses (x) and (y) shall not be the same person, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement each Preliminary Prospectus~~Statement, the Disclosure Package, the Final Prospectus and any ~~amendment~~ supplements or ~~supplement~~ amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that each such signer certifies, in his or her capacity as an officer of the Company, that: (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 at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice of the Commission 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ 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 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 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 29, 2020 (date of inception) through July 24, 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. (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 Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material 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 that would reasonably be expected, individually or ~~affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions~~ in the ~~ordinary course of business~~aggregate, to have a Material Adverse Effect, in each case, except as set forth in or contemplated in the ~~Statutory Prospectus~~ 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 Representatives, 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (g) 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 Rating Agency 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. (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. (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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ~~▇▇▇ ▇▇▇~~▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇, ~~Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein,~~ on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Emc 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,~~ Time and the ~~Closing Date and any Option~~ Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions ~~hereof~~of this Section, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The ~~Prospectus, and any supplement thereto,~~ Final Prospectus shall have been filed in with the ~~manner and~~ Commission pursuant to Rule 424(b) under the Act within the applicable time period ~~required by Rule 424(b)~~prescribed for such filing 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 ~~Weil, Gotshal~~ S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives ~~its opinions~~ their opinion and ~~negative assurance~~ letter, ~~each~~ dated the Closing Date and addressed to the Representatives, substantially in a the form ~~reasonably acceptable~~ attached hereto as A▇▇▇▇ ▇; (c) The Company shall have requested and caused M▇▇▇▇▇▇▇ T▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives., with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, substantially in the form attached hereto as Annex C. (cd) The Representatives shall have received from ~~Ropes &~~ B▇▇▇▇ ~~LLP~~B▇▇▇▇ L.L.P., U.S. counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the ~~Statutory Prospectus, 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.; (de) 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 V▇▇▇▇▇ & E▇▇▇▇▇ 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 Representatives a certificate of the Company, signed by ~~the~~ either one of its Executive Vice President & Chief ~~Executive~~ Financial Officer ~~and the principal financial~~ or ~~accounting officer of the Company~~Vice President, Treasury, Risk & Pensions, dated the Closing Date, to the effect that the signers of such certificate have ~~carefully examined~~ reviewed the Registration ~~Statement each Preliminary~~ Statement, the Disclosure Package, the Final Prospectus, any supplements to the ~~Prospectus and any amendment or supplement thereto~~Final Prospectus, and this ~~Agreement~~ Agreement, and ~~that~~to the best knowledge of such 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 and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing 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, ~~threatened~~threatened 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 ~~Statutory Prospectus~~ 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).; (ei) The ~~Company~~ Representatives shall have ~~requested and caused KPMG to have furnished to~~ received from PricewaterhouseCoopers LLP, the ~~Representatives~~Company’s independent auditor, a letter or letters dated 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 reasonably satisfactory to the Representatives, ~~confirming that they are a registered public accounting firm that is independent~~ 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 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 29, 2020 (date of inception) through July 24, 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 certain financial ~~statement schedules included~~ information contained in the Registration Statement, the ~~Statutory Prospectus~~ 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; andFinal Prospectus; (iij) 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[Reserved.] (fk) 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~~ thereto) and the Disclosure Package and the Final 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 (ei) 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 ~~prospects~~ properties of the ~~Company~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~ the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 ~~thereof~~thereto), the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).; (gl) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by S&P Global Ratings, M▇▇▇▇’▇ Investors Service or DBRS Limited and no such rating 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 the Company or any of the Company’s debt securities or preferred stock; and (m) 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) FINRA shall not have raised any objection with respect~~ request and as is customary in offerings of securities similar 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 ~~Representatives. Notice~~ Representatives upon notice of ~~such~~ cancellation ~~shall be given~~ to the Company in writing (including by email) or by telephone or facsimile confirmed in ~~writing~~writing (including by email). The documents required to be delivered by this Section 6 7 shall be delivered at the office of ~~Ropes~~ S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, ~~counsel for the Underwriters, at~~ Attention: C▇▇▇▇ ▇▇▇▇▇▇ ▇▇ . ▇▇▇▇▇▇▇, 1▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇~~▇, Attention: ▇▇▇~~▇ ~~▇. ▇▇▇▇▇, unless otherwise indicated herein,~~ on the Closing ~~Date~~Date (or such other date as provided in this Section 7) or such other place as the Representatives shall so instruct.

Appears in 1 contract

Sources: Underwriting Agreement (Enbridge 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 Manager contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager 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~~ At the Closing Date, the Representatives shall have ~~requested~~ received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP, DLA Piper LLP (US) and ~~caused Weil~~▇▇▇▇▇▇▇, ~~Gotshal~~ ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇~~▇ LLP~~▇▇▇, L.L.C., counsel for the ~~Company~~Company and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A, Exhibit B and Exhibit C hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to ~~have furnished~~ the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the ~~Representatives its opinions~~ extent they deem proper, on certificates of responsible officers of the Company and ~~negative assurance letter, each dated~~ public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing ~~Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives~~Date. (c) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the 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 each Preliminary Prospectus~~Statement, the Disclosure Package, the Final Prospectus and any ~~amendment~~ supplements or ~~supplement~~ amendments 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 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 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 ~~Statutory Prospectus~~ 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer 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 the representations and warranties of the Manager 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. (f) The Company shall have requested and caused ~~KPMG~~ 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 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 a registered public accounting firm that is independent~~ containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters 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 29, 2020 (date of inception) through July 24, 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 certain financial ~~statement schedules included~~ information contained 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 Disclosure Package 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. (fg) 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 Final Prospectus (exclusive of any amendment or 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) ), earnings, business or ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ 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 Representatives, 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (gh) 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) 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~~ have been listed ~~subject to notice of issuance~~ and admitted and authorized for trading on the ~~Nasdaq Capital Market~~New York Stock Exchange, and satisfactory evidence of ~~which~~ such actions shall have been provided to the Representatives. (j) On At the ~~Effective Date~~Execution Time, the Company shall have ~~delivered~~ furnished to the Representatives ~~executed copies~~ a letter substantially in the form of Exhibit D hereto from (i) each officer and director of the ~~Securities Assignment Agreement~~Company (other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇), (ii) each officer of the ~~Founder’s Purchase Agreement~~Manager, ~~the Warrant Subscription Agreement~~ Stew ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ~~the Administrative Services Agreement. On or prior~~ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ and (iii) SPT Investment, LLC, in each case addressed to the ~~Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement~~Representatives. (k) At ~~least one Business Day prior to~~ the ~~Closing Date~~Execution Time, the ~~Sponsor~~ Company 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 Representatives pursuant to Section 5(g) 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. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives on a letter substantially in the ~~applicable Option Closing Date~~ form of ~~the following:~~ Exhibit E hereto from (i) ~~a certificate signed by~~ the ~~Chief Executive Officer~~ Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) ~~opinions and negative assurance letter of Weil, Gotshal &~~ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date▇▇, in ~~form and substance satisfactory~~ each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Representatives. 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~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ~~▇▇▇~~▇ ▇▇▇▇▇▇ ~~▇▇ ▇▇▇ ▇▇~~▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇~~, Attention: ▇▇▇▇ ▇.~~ -▇▇▇▇~~▇, unless otherwise indicated herein~~, on the Closing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Starwood Property Trust, Inc.)

Common use of Conditions to the Obligations of the Underwriters Clause in Contracts