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 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 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. (e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer of such certificate 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). (f) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter. (g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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). (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives. (k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement. (l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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. (n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 3 contracts
Sources: Underwriting Agreement (H.I.G. Acquisition Corp.), Underwriting Agreement (H.I.G. Acquisition Corp.), Underwriting Agreement (H.I.G. 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 2August 12, 2020 2019 (date of inception) through September 3August 29, 20202019, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing 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 and Shareholder Stockholder Rights Agreement and the Administrative Services Support Agreement.
(k) [Reserved].
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $6,000,000 of the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount and the remaining $3,250,000 to be paid to the Company.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 3 contracts
Sources: Underwriting Agreement (Juniper Industrial Holdings, Inc.), Underwriting Agreement (Juniper Industrial Holdings, Inc.), Underwriting Agreement (Juniper Industrial Holdings, 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Eversheds S▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ (US) 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes & R▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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, or threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum M▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2February 12, 2020 2021 (date of inception) through September 3February 25, 20202021, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 RepresentativesRepresentative, 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed listed, subject to notice of issuance issuance, on the New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one (1) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 & R▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇5▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇A▇▇ ▇. ▇▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 3 contracts
Sources: Underwriting Agreement (Colombier Acquisition Corp.), Underwriting Agreement (Colombier Acquisition Corp.), Underwriting Agreement (Colombier 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ Winston & S▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(dc) The Representatives shall have received from Ropes & Ellenoff G▇▇▇▇▇▇▇ & Schole LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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).
(fe) The Company shall have requested and caused Withum WSB 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 as of September 3, 2020 and for the period from September 2April 7, 2020 2017 (date of inception) through September 3April 13, 20202017, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeThe NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment 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 Support Agreement.
(lk) At least one (1) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(ll) 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 & Ellenoff G▇▇▇▇▇▇▇ & Schole LLP, counsel for the Underwriters, at ▇1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: S▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 3 contracts
Sources: Underwriting Agreement (Industrea Acquisition Corp.), Underwriting Agreement (Industrea Acquisition Corp.), Underwriting Agreement (Industrea 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 settlement date pursuant to Section 3 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 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 Representatives shall have requested and caused ▇received from ▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the one of its Chief Financial Officer Executive Officers and its principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signer signers of such certificate has 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 DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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).
(fe) The Company shall have requested and caused Withum WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate 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 and financial statement schedules included in the Company as of September 3Registration Statement, 2020 the Statutory Prospectus and for the period from September 2, 2020 (date of inception) through September 3, 2020Prospectus, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing DateDate 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 (f(e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f(e) 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) 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).
(hg) Prior to the Closing DateDate 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, Letter and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one Business Day prior to the Closing DateDate 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing 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 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 6 shall be delivered at the office of Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 3 contracts
Sources: Underwriting Agreement (Nebula Caravel Acquisition Corp.), Underwriting Agreement (Nebula Caravel Acquisition Corp.), Underwriting Agreement (Nebula Caravel 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 settlement date pursuant to Section 3 hereofOption 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 or under Section 8A under the Securities Act 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 or under Section 8A under the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included 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).
(fe) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2January 19, 2020 2021 (date of inception) through September 330, 20202021, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Global Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) 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 shall have delivered will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, Letters and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose or under Section 8A under the Securities Act shall have been instituted or shall have been threatened.
(nm) On or before The several obligations of the date of this Agreement, Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives shall have received on the applicable Option Closing Date of the following:
(i) a certificate satisfying signed by the beneficial ownership due diligence requirements Chief Executive Officer and the principal financial or accounting officer of the Financial Crimes Enforcement Network 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;
(“FinCEN”ii) from opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company 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 reasonably satisfactory to the Representatives, along with from Withum 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 additional supporting documentation Option Closing Date; and
(v) such further information, certificates and documents as the Representatives have requested in connection may reasonably request with respect to the verification issuance of the foregoing certificatesuch 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 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 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 3 contracts
Sources: Underwriting Agreement (Gores Holdings IX, Inc.), Underwriting Agreement (Gores Holdings X, Inc.), Underwriting Agreement (Gores Holdings IX, 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 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 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement theretothereto 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).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 2February 16, 2020 2021 (date of inception) through September 3February 16, 20202021, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Datedate hereof, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement Agreement, the Anchor Investment Agreements, the Forward Purchase Agreements and the Administrative Services Support Agreement.
(lk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 (Integral Acquisition Corp 1), Underwriting Agreement (Integral Acquisition Corp 1)
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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative, in a form reasonably acceptable to the Representative.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the CompanyUnderwriters, to have furnished to the Representatives its opinions and negative assurance lettersuch opinion or opinions, 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the co-Chief Financial Officer Executive Officers and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2January 19, 2020 2021 (date of inception) through September 330, 20202021, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 RepresentativesRepresentative, 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeThe Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Support Agreement.
(lk) At least one (1) Business Day prior to the Closing Effective Date, the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Roman DBDR Tech Acquisition Corp. III), Underwriting Agreement (Roman DBDR Tech Acquisition Corp. II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 a form reasonably acceptable to the Representative.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the CompanyUnderwriters, to have furnished to the Representatives its opinions and negative assurance lettersuch opinion or opinions, 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review (i) an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2May 9, 2020 2019 (date of inception) through June 30, 2019 and (ii) a review of the financial statements of the Company for the period from May 9, 2019 through September 330, 20202019, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 RepresentativesRepresentative, 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeThe Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Support Agreement.
(lk) At least one (1) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Software Acquisition Group Inc.), Underwriting Agreement (Software Acquisition Group Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any supplement theretosuch supplement, have been will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇C▇▇▇▇▇▇▇ & ▇▇▇▇▇ Chance US LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letterRepresentative their opinion, each dated the Closing Date and addressed to the RepresentativesRepresentative, in a the form reasonably acceptable to the Representatives.attached hereto as Exhibit A.
(c) The Company shall have requested and caused M▇▇▇▇ & V▇▇ ▇▇▇▇▇▇ and Calder, Cayman Islands PLLC, local counsel for the Company, to have furnished to the Representatives its opinions Representative their opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, in a the form reasonably acceptable to the Representatives.attached hereto as Exhibit B.
(d) The Representatives Company shall have requested and caused C▇▇▇▇▇▇▇ Chance US LLP, tax counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, in the form attached hereto as Exhibit C.
(e) The Company shall have requested and caused V▇▇▇▇▇▇ LLP, Maryland counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, in the form attached hereto as Exhibit D.
(f) The Representative shall have received from Ropes & G▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusDisclosure 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.
(eg) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial 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 signer signers of such certificate has carefully have 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 and the Operating Partnership 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 and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their 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, 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 Effectmaterial 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 Prospectus (exclusive of any supplement thereto).
(fh) The Company shall have requested and caused Withum Deloitte & Touche LLP to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are a independent registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Act and the Exchange Securities 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 September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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 or incorporated by reference in the Registration Statement, the Statutory Prospectus Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its Subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and board committees of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its Subsidiaries as to transactions and events subsequent to December 31, 2006, nothing came to their attention which caused them to believe that:
(A) with respect to the period subsequent to December 31, 2006, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its Subsidiaries or capital stock of the Company as compared with the amounts shown on the December 31, 2006 consolidated balance sheet included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from January 1, 2007 to such specified date there were any decreases, as compared with the amounts shown on the statement of operations for the corresponding period in the previous year, in consolidated net revenues of the Company and its Subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative; and
(iiB) the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the CompanyCompany and its Subsidiaries) set forth or incorporated by reference in the Registration Statement, the Statutory Prospectus Statement 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 CompanyCompany and its Subsidiaries, excluding any questions of legal interpretation. ; References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gi) 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 (fg) 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 CompanyCompany 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 RepresentativesRepresentative, 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).
(hj) 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.
(ik) FINRA Subsequent to the Execution Time, there shall not have raised been any objection with respect to decrease in the fairness or reasonableness rating of any of the underwriting Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or other arrangements 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 transactions contemplated herebypossible change.
(jl) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust AccountRepresentative.
(m) No order preventing or suspending the sale The NASD, upon review of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as terms of the Closing Datepublic offering of the Securities, and no proceedings for that purpose shall not have been instituted objected to such offering, such terms or shall have been threatenedthe Underwriters’ participation in same.
(n) On or before the date of this Agreement, the Representatives The Company shall have received furnished to the Representative a certificate satisfying letter in the beneficial ownership due diligence requirements form of Exhibit E hereto from each director and executive officer of the Financial Crimes Enforcement Network (“FinCEN”) from Company named in the Company in form Registration Statement and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificateProspectus. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 & C▇▇▇▇▇▇▇ Chance US LLP, counsel for the UnderwritersCompany, at 3▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. -▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Cogdell Spencer Inc.), Underwriting Agreement (Cogdell Spencer 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, Initial Sale Time and as of the Closing Date (including, for the avoidance of doubt, compliance with covenants and any settlement date pursuant conditions in the indentures of the Company relating to Section 3 hereofthe creation, assumption or incurrence of funded indebtedness), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, (i) Each Preliminary Final Prospectus that supplements the Basic Prospectus and any supplement thereto, the Canadian Final Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures and (ii) each Preliminary Final Prospectus that supplements the U.S. Basic Prospectus and the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.L. of Form F-10 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives its opinions and negative assurance lettertheir 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 Company shall have requested and caused Blake, ▇▇▇▇▇▇▇ and Calder& ▇▇▇▇▇▇▇ LLP, Cayman Islands Canadian counsel for the Company, to shall have furnished to the Representatives its opinions their opinion, dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable with respect to the Representatives.laws of the Province of Alberta and the federal laws of Canada applicable therein, to the effect set forth in Annex IIa and Annex IIb;
(d) The Representatives shall have received from Ropes ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture (if applicable), the Registration Statement, the Statutory ProspectusDisclosure Package, the U.S. 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.;
(e) The Representatives 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 a certificate of the Company, signed by the Vice-President, Finance and Treasurer and the Executive Vice-President, Corporate Development and Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the signers of such certificate have carefully examined the Registration Statement, the Canadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus, any supplements to the Canadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus and this Agreement;
(ii) 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 orbeen, to the Company’s knowledge, threatened; andinstituted or threatened by the Reviewing Authority or the Commission;
(iiiiv) 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 Initial Sale Time, and the Prospectus (exclusive of any supplement thereto)Disclosure Package, there has been no Material Adverse Effectmaterial 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 Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Prospectus (exclusive of any supplement thereto).Disclosure Package; and
(fv) The the Company shall have requested is in compliance with the covenants and caused Withum to have furnished conditions in the indentures of the Company relating to the Representativescreation, at assumption or incurrence of funded indebtedness;
(g) At the Execution Initial Sale Time and at the Closing Date, letters, the Representatives shall have received from KPMG LLP a letter or letters dated respectively as of the Execution Time and as of the Closing Datesuch date or dates, in form and substance 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 as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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, the Disclosure Package, any Issuer Free Writing 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 (f) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Initial Sale 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 Initial Sale Time, the Statutory Canadian Final Prospectus and as amended or supplemented prior to the Prospectus (exclusive of Initial Sale Time, the Disclosure Package 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 (fg) 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 CompanyCompany 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 Initial Sale Time, and the Prospectus (exclusive of any supplement thereto) Disclosure Package 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 Statement, the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and any Issuer Free Writing Prospectus;
(exclusive i) Subsequent to the Initial Sale Time, there shall not have been any decrease in the rating of any amendment thereof)of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change;
(j) If the Registration Statement or an offering of Securities has been filed with the FINRA for review, the Statutory Prospectus FINRA shall not have raised any objection with respect to the fairness and reasonableness of the Prospectus (exclusive of any supplement thereto).underwriting terms and arrangements; and
(hk) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be 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 5 shall be delivered at the office of Ropes & ▇the Company, Attention: Corporate Secretary, ▇▇▇ LLP, counsel for the Underwriters, at ▇— ▇▇▇ ▇▇▇▇▇▇ ▇▇ .▇., ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or such other place as the Company and the Representatives shall so agree.
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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 a form reasonably acceptable to the Representative.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the CompanyUnderwriters, to have furnished to the Representatives its opinions and negative assurance lettersuch opinion or opinions, 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Officer Executive Officers and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2January 1, 2020 2021 (date commencement of inceptionoperations) through September 3February 24, 20202021 and a review of the financial statements of the Company for the quarter ended March 31, 2021, provided that the cutoff date shall not be more than two business days 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 RepresentativesRepresentative, 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Support Agreement.
(lk) At least one (1) Business Day prior to the Closing Effective Date, the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Apeiron Capital Investment Corp.), Underwriting Agreement (Apeiron Capital Investment Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 G▇▇▇▇▇▇▇ & ▇▇▇▇▇ Schole 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes White & ▇▇▇▇ Case LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum M▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2July 24, 2020 (date of inception) through September 3August 17, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 RepresentativesRepresentative, 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeThe Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Support Agreement.
(lk) At least one (1) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 White & ▇▇▇▇ Case LLP, counsel for the Underwriters, at ▇1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇J▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Seaport Global Acquisition Corp), Underwriting Agreement (Seaport Global Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the Representatives, Representative in a the form reasonably acceptable to the Representativesattached as Exhibit A hereto.
(dc) The Representatives Representative shall have received from Ropes Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and the Bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused Withum ▇▇▇▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 2October 24, 2020 2013 (date of inception) through September 3to November 20, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable2013, 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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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 RepresentativesRepresentative, 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).
(h) 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.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNASDAQ Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(k) On or prior to the Closing Effective Date, the Company shall have delivered 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 Insider Letter, the Registration and Shareholder Rights Escrow Agreement and each of the Administrative Services AgreementInsider Letters.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered a letter from each Participant, substantially in the form of Exhibit C hereto.
(m) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited funded into the Trust Account.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(kk) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Boulevard Acquisition Corp.), Underwriting Agreement (Boulevard Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, hereunder 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, the Option Closing Date, if any, and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The If filing the Prospectus, and or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Act or the Securities Act Regulations, the Company shall have been filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required by (without reliance on Rule 424(b424(b)(8) or 164(b) under the Act); and the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof, any Rule 462 Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and issued; no proceedings for that purpose the issuance of such an order shall have been instituted initiated or threatened; and any request of the Commission or the Underwriters for additional information (to be included in the Registration Statement, the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Company Representative shall have requested and caused received confirmation from R▇▇▇▇▇▇▇ B▇▇▇ L▇▇▇▇▇▇▇ G▇▇▇▇▇ G▇▇▇▇▇▇▇ & ▇G▇▇▇▇ LLP, counsel for P.C. that there are no claims to which its representation has been sought and that are outstanding in respect of 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 R▇▇▇▇▇▇▇ and CalderBrog Leinwand G▇▇▇▇▇ G▇▇▇▇▇▇▇ & G▇▇▇▇ P.C., Cayman Islands securities counsel for the Company, to have furnished to the Representatives its opinions Representative their written opinion and Rule 10b-5 negative assurance letter, dated the Closing Date or the Option Closing Date, as applicable, in form and addressed substance reasonably satisfactory to the Representatives, in a form reasonably acceptable to the RepresentativesRepresentative and its counsel.
(d) The Representatives Representative shall have received from Ropes & the Rule 10b-5 negative assurance letter of L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters’ counsel, such opinion or opinions and negative assurance letter, each dated the Closing Date or the Option Closing Date, as applicable, 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 such matters as the Representatives Underwriters may reasonably require, and the Company shall have furnished to such counsel L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Representative shall have received the opinion of [Law Offices of D▇▇▇▇▇ ▇. ▇▇▇▇, PLLC], special intellectual property counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance reasonably satisfactory to the Representative and its counsel.
(f) The Representative shall have received the opinion of [Blooston, Mordkofsky, Dickens, D▇▇▇▇ & P▇▇▇▇▇▇▇▇▇▇, LLP], general counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance reasonably satisfactory to the Representative and its counsel.
(g) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the CompanyCompany or any other officers of the Company acceptable to the Representative in its discretion, dated the Closing Date or the Option Closing Date, as applicable, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Pricing Disclosure Package and the Prospectus and any amendment supplements or supplement thereto, amendments 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 the Option Closing Date, as applicable, with the same effect as if made on the Closing Date or the Option Closing Date, as applicable, 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 or the Option Closing Date, as applicable;
(ii) no stop order or other order (A) suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof or any amendment thereof, or (B) suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued issued, and no proceedings proceeding for that purpose have has been instituted or, to the Company’s their knowledge, threatened; andis contemplated by the Commission or any state or regulatory body;
(iii) since the date of the most recent financial statements included in the Statutory Prospectus Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse EffectChange; and
(iv) the Company has complied with the terms and conditions of this Agreement on its part to be complied with up to the time of closing on the Closing Date or the Option Closing Date, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)applicable,.
(fh) The Representative shall have received on and as of the Closing Date or the Option Closing Date, as applicable, satisfactory evidence of the good standing of the Company and its subsidiary in writing from the applicable Secretary of State of its jurisdiction of organization.
(i) The Company shall have requested and caused Withum the Auditors to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date or the Option Closing Date, lettersas applicable, letters (which may refer to letters previously delivered to the Representative), dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a each is an independent registered public accounting firm that is independent with respect to the Company within the meaning of the Securities Act and the Exchange Act and covering, without limitation, in the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review case of the Former Auditor, the Company’s audited financial statements of the Company as of September 3, 2020 and for the period from September 2year ended December 31, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable2014, and stating in effect that:
(i) in their opinion the case of the Current Auditor, the Company’s audited financial statements as of and the year ended December 31, 2015, and the various financial statement schedules included disclosures related thereto contained in the Registration Statement, the Statutory Preliminary Prospectus, the 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 accountingIssuer Free Writing Prospectuses, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letterif any.
(gj) 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)Prospectus, there shall not have been (iA) any change or decrease specified in the letter or letters referred to in paragraph (fh) of this Section 6 4 or (iiB) any changeMaterial Adverse 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 (iA) or (iiB) above, is, in the sole judgment of the RepresentativesRepresentative, 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 Pricing Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(hk) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(l) Prior to the Closing Date or the Option Closing Date, as applicable, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(im) FINRA The Company shall not have raised any objection filed a Listing of Additional Shares form with respect NASDAQ governing the Shares and the Warrant Shares to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated herebybe listed thereunder.
(jn) The Securities shall be duly listed subject to notice of issuance on At the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing DateExecution Time, the Company shall have delivered furnished to the Representatives Representative Lock-Up Agreements executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificateLock-Up Parties. If any of the conditions specified in this Section 6 4 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 4 shall be delivered at the office of Ropes & L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated hereinthe Closing Location, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (xG TECHNOLOGY, INC.), Underwriting Agreement (xG TECHNOLOGY, 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 settlement date pursuant to Section 3 hereofOption 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 or under Section 8A under the Securities Act shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇, 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 RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder▇▇▇▇▇▇ (Cayman) LLP, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions opinion, dated as of the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Ropes & ▇▇▇▇ Gray 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.
(e) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 or under Section 8A under the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included 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).
(f) The Company shall have furnished to the Representative a Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters and customary for the type of offering contemplated by this Agreement.
(g) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 2July 22, 2020 2025 (date of inception) through September 3December 31, 20202025, 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 (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fg) 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 RepresentativesRepresentative, 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).
(hi) 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.
(ij) 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.
(jk) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Global Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kl) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Share Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company shall have delivered 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 Letter, Letters and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lm) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants Shares to be deposited into the Trust Account, such that the cumulative amount deposited into the Trust Account as of such Closing Date or Option Closing Date, as applicable, shall equal the product of the number of Units sold in the Offering as of such Closing Date or Option Closing Date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose or under Section 8A under the Securities Act shall have been instituted or shall have been threatened.
(no) On or before The several obligations of the date Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representative on the applicable Option Closing Date of this Agreement, the Representatives shall have received following:
(i) a certificate satisfying signed by the beneficial ownership due diligence requirements Chief Executive Officer and the principal financial or accounting officer of the Financial Crimes Enforcement Network Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(e) hereof remains true and correct as of such Option Closing Date;
(“FinCEN”ii) from opinions and negative assurance letter of ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company 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 of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Cayman) LLP, Cayman Islands 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(c) hereof.
(iv) opinions and negative assurance letter of Ropes & Gray 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(d) hereof;
(v) a letter dated the Option Closing Date, in form and substance reasonably satisfactory to the RepresentativesRepresentative, along with such additional supporting documentation from ▇▇▇▇▇▇ substantially in the same form and substance as the Representatives have requested in connection letter furnished to the Underwriters pursuant to Section 6(g) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(vi) such further information, certificates and documents as the Representative may reasonably request with respect to the verification issuance of the foregoing certificatesuch 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 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 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 RepresentativesRepresentative. 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 & ▇▇▇▇ Gray LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Gores Holdings XI, Inc.), Underwriting Agreement (Gores Holdings XI, 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, hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Trust contained herein as of the Execution Time, the date hereof and each Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the any material statements of the Company made in any certificates certificates, opinions, affidavits, written statements or letters furnished to the Representative(s) or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“Underwriters’ Counsel”) pursuant to the provisions hereofthis Section 7, to the performance by the Company and the Trust of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, Final Prospectus shall have been filed with the Commission pursuant to Rule 424 not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement or such later date and time as shall be consented to in writing by the manner and within the time period required by Rule 424(bRepresentative(s); and no stop .
(b) No order suspending the effectiveness of the Registration Statement Statement, as amended from time to time, or any notice objecting to its use suspending the qualification of the Declaration, the Guarantee Agreement or the Indenture, shall have been issued be in effect and no proceedings for that such purpose shall be pending before or threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, to have furnished complied with to the Representatives its opinions and negative assurance letter, each dated reasonable satisfaction of the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the RepresentativesRepresentative(s).
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for Since 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 & ▇▇▇▇ 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer of such certificate 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).
(f) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the respective 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)Final Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph paragraphs (fh) or (i) 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 7 which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative(s), so material and adverse as to make makes it impractical impracticable or inadvisable to proceed with the offering or and delivery of the Preferred Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Final Prospectus.
(hd) Prior to the Closing Date, the The Company shall have furnished to the Representatives such further informationRepresentative(s) the opinion of the Chief Legal Officer, certificates and documents as General Counsel or an Associate General Counsel for the Representatives may reasonably request.Company, dated the applicable Closing Date, to the effect that:
(i) FINRA shall not The Company has been duly incorporated and is validly existing and in good standing as a corporation under the law of the jurisdiction of its incorporation and has full corporate power and authority to conduct its business as described in the Final Prospectus.
(ii) The statements made in the Final Prospectus under the captions “Description of Debentures”, “The Trust”, “Description of Preferred Securities”, “Description of Guarantee” and “Relationship Among the Preferred Securities, the Debentures and the Guarantee”, insofar as such statements purport to constitute summaries of the terms of the Preferred Securities, the Debentures and the Guarantee, constitute accurate summaries of the terms of the Preferred Securities, the Debentures and the Guarantee in all material respects.
(iii) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument enforceable against the Company in accordance with its terms; and the Debentures have raised any objection been duly authorized, executed and issued by the Company, and assuming due authentication by the Indenture Trustee and upon payment and delivery in accordance with respect this Agreement, will constitute a valid and legally binding obligations of the Company entitled to the fairness or reasonableness benefits of the underwriting Indenture; and the Guarantee Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Guarantee Trustee, will constitute a legal, valid and binding obligation of the Company; provided, however, that the foregoing is subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other similar laws relating to or other arrangements affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and to an implied covenant of good faith and fair dealing.
(iv) No consent, approval, authorization, order, registration or qualification of any court or governmental agency or body is required for the consummation of the transactions contemplated herebyin this Agreement, except for (1) such consents, approvals, authorizations, orders, registrations or qualifications as have been obtained under the Securities Act and such as may be required under the Exchange Act under state securities and Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, and (2) the qualification of the Indenture, the Declaration and the Guarantee Agreement under the Trust Indenture Act, which has been obtained.
(jv) The Securities shall Such counsel does not know of any contracts or other documents that are required to be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided filed as exhibits to the RepresentativesRegistration Statement by the Securities Act or by the Rules which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules.
(kvi) On To such counsel’s knowledge, neither the Company nor any Significant Subsidiary that is organized under the laws of the United States or prior any State or territory thereof (a “Domestic Significant Subsidiary”) is in violation of its organizational documents, or in default under any material agreement, indenture or instrument known to such counsel, the effect of which violation or default would be material to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights its subsidiaries taken as a whole.
(vii) This Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing DateDeclaration have been duly authorized, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated executed and delivered by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of Company; the Closing Dateexecution, delivery and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date performance of this Agreement, the Representatives shall have received Declaration, the Indenture and the Guarantee Agreement (collectively the “Transaction Documents”) by the Company and the Trust will not conflict with, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the assets of the Company or any Domestic Significant Subsidiary pursuant to the terms of, or constitute a certificate satisfying default under, any indenture, mortgage, deed of trust, loan or other agreement or instrument known to such counsel and to which the beneficial ownership due diligence Company or any Domestic Significant Subsidiary is a party or is bound, or result in a violation of the corporate charter or by-laws of the Company or either of its Significant Subsidiaries or any statute, rule, regulation or any order known to such counsel of any court or governmental agency having jurisdiction over the Company, any Domestic Significant Subsidiary or any of their respective properties, the effect of which would be material to the Company and its subsidiaries taken as a whole.
(viii) The Registration Statement has become effective under the Securities Act, and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission.
(ix) The Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to the financial statements or other financial or statistical data or the Forms T-1 included or incorporated by reference therein) comply as to form in all material respects with the requirements of the Financial Crimes Enforcement Network Securities Act and the Rules.
(“FinCEN”x) from If the Preferred Securities are to be listed on the NYSE, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Preferred Securities with the NYSE, and such counsel has no reason to believe that the Preferred Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution.
(xi) Each Domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in form good standing under the law of the jurisdiction of its incorporation and substance reasonably each such subsidiary has the corporate power and authority to conduct its business as described in the Final Prospectus. Each of the Company and the Domestic Significant Subsidiaries is duly qualified to do business as a foreign corporation, is in good standing and is duly registered as a broker-dealer, broker, dealer or investment advisor, as the case may be, in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it require such qualification or registration and where the failure to so qualify or register would have a Material Adverse Effect.
(xii) All the outstanding shares of capital stock of each Domestic Significant Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable and, except for directors’ qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any claims, liens, encumbrances and security interests.
(xiii) Such counsel does not know of any legal or governmental proceeding pending or threatened against the Company or any of its subsidiaries which would affect the subject matter of this Agreement or is required to be described in the Final Prospectus which is not described and correctly summarized therein.
(xiv) To such counsel’s knowledge, the Trust is not a party to or otherwise bound by any agreement other than those described in the Final Prospectus.
(xv) The Trust is not subject to registration as an “investment company” under the Investment Company Act of 1940, as amended. Such counsel shall also have furnished a statement that although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Final Prospectus (except as to those matters stated in paragraph (ii) of such opinion), such counsel has no reason to believe that (i) the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or (ii) the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no statement need be made as to the financial statements or other financial or statistical data or the Forms T-1 included or incorporated by reference therein). In rendering such opinion and statement, such counsel may rely upon opinions of local counsel satisfactory to the RepresentativesRepresentative(s) for matters not governed by New York law and may rely as to matters of fact, along with such additional supporting documentation as to the Representatives have requested in connection with the verification extent he or she deems proper, upon certificates or affidavits of officers of the foregoing certificateCompany, the Trustees, the Guarantee Trustee or the Indenture Trustee and public officials. If any Such counsel may rely on a certificate of the conditions specified in this Section 6 shall not have been fulfilled when Indenture Trustee and as provided in this Agreement, or if any the Guarantee Trustee with respect to the execution of the opinions Debentures and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for Guarantee, respectively, by the UnderwritersCompany, this Agreement and all obligations the authentication of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date Debentures by the Representatives. Notice Indenture Trustee, and the execution of such cancellation shall be given to the Company in writing or Guarantee 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ Guarantee Trustee.
(e) ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇& Finger, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇special Delaware counsel for the Company and the Trust, unless otherwise indicated hereinshall have furnished to the Representative(s) its opinion, on certain matters of Delaware law relating to the validity of the Preferred Securities, dated the applicable Closing Date, to the effect that:
(i) The Trust has been duly created and is validly existing in good standing as a business trust under the Statutory Trust Act with the business trust power and authority to own property and to conduct its business as described in the Final Prospectus and to enter into and perform its obligations under each of this Agreement, the Preferred Securities, the Common Securities and the Declaration; the Trust is a party to this Agreement and the Declaration and, to such counsel’s knowledge, the Trust is not a party to or otherwise bound by any agreement other than those described in the Final Prospectus.
(ii) The Common Securities have been duly authorized by the Declaration and, when issued and delivered by the Trust to the Company as described in the Final Prospectus, will be validly issued and (subject to the terms of the Declaration) fully paid undivided beneficial ownership interests in the assets of the Trust (such counsel may note that the holders of Common Securities will be subject to the withholding provisions of Section 10.4 of the Declaration, will be required to make payment or provide indemnity or security as set forth in the Declaration and will be liable for the debts and obligations of the Trust to the extent provided in Section 9.1(b) of the Declaration); under the Statutory Trust Act and the Declaration the issuance of the Common Securities is not subject to preemptive or other similar rights.
(iii) The Preferred Securities have been duly authorized by the Declaration and, when issued and delivered by the Trust to the Company as described in the Final Prospectus, the Preferred Securities will be validly issued and (subject to the terms of the Declaration) fully paid and non-assessable undivided beneficial ownership interests in the Trust, the holders of the Preferred Securities will be entitled to the benefits of the Declaration (subject to the limitations set forth in clause (v) below) and will be entitled to the same limitation of personal liability under Delaware law as extended to stockholders of private corporations for profit (such counsel may note that the holders of Preferred Securities will be subject to the withholding provisions of Section 10.4 of the Declaration and will be required to make payment or provide indemnity or security as set forth in the Declaration).
(iv) All necessary trust action has been taken to duly authorize the execution and delivery by the Trust of this Agreement.
(v) Assuming the Declaration has been duly authorized by the Company and has been duly executed and delivered by the Company and the Regular Trustees, and assuming due authorization, execution and delivery of the Declaration by the Property Trustee and the Delaware Trustee, the Declaration constitutes a valid and binding obligation of the Company and the Regular Trustees, enforceable against the Company and the Regular Trustees in accordance with its terms; provided, however, that the foregoing is subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors, rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing.
(vi) The issuance and exchange by the Trust of the Preferred Securities for the Debentures, the execution, delivery and performance by the Trust of this Agreement, the consummation by the Trust of the transactions contemplated by this Agreement and compliance by the Trust with its obligations thereunder will not violate (i) any of the provisions of the Certificate of Trust or the Declaration or (ii) any applicable Delaware law or administrative regulation.
(vii) Assuming that the Trust derives no income from or connected with services provided within the State of Delaware and has no assets, activities (other than having a Delaware Trustee as required by the Statutory Trust Act and the filing of documents with the Secretary of State of Delaware) or employees in the State of Delaware, no filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Delaware court or Delaware governmental authority or agency (other that as may be required under the securities or blue sky laws of the State of Delaware, as to which such counsel need express no opinion) is necessary or required in connection with the due authorization, execution and delivery of this Agreement or the offering, issuance, sale or delivery of the Preferred Securities. In re
Appears in 2 contracts
Sources: Underwriting Agreement (Lehman Brothers Holdings Inc), Underwriting Agreement (Lehman Brothers Holdings 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇, 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes & ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2February 9, 2020 2021 (date of inception) through September 3March 25, 20202021, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 RepresentativesRepresentative, 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription AgreementPrivate Placement Agreements, the Insider Letter, Letter and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one (1) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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: ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (AltEnergy Acquisition Corp), Underwriting Agreement (AltEnergy Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 M▇▇▇▇▇▇▇▇ Will & ▇E▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the Representatives, Representative in a the form reasonably acceptable to the Representativesattached as Exhibit A hereto.
(dc) The Representatives Representative shall have received from Ropes Akin Gump S▇▇▇▇▇▇ H▇▇▇▇ & ▇F▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused Withum R▇▇▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September August 2, 2020 2013 (date of inception) through September 3to August 6, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable2013, 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 (fe) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) 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 RepresentativesRepresentative, 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).
(h) 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.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(k) On or prior to the Closing Effective Date, the Company shall have delivered 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 Insider Letter, the Registration and Shareholder Rights Escrow Agreement and each of the Administrative Services AgreementInsider Letters.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered a letter from each Participant, substantially in the form of Exhibit C hereto.
(m) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited funded into the Trust Account.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(kk) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 Akin Gump S▇▇▇▇▇▇ H▇▇▇▇ & ▇F▇▇▇ LLP, counsel for the Underwriters, at ▇▇O▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Levy Acquisition Corp), Underwriting Agreement (Levy Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 or the settlement date, as the case may be, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable satisfactory to the RepresentativesRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date or the settlement date, as the case may be, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable satisfactory to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or the settlement date, as the case may be, 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 may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or the settlement date, as the case may be, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, 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 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 Datesuch date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the 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).
(f) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing DateDate or the settlement date, as the case may be, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, 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 containing statements and information of the audited financial statements type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of the Company as of September 3Auditing Standards No. 72 (or any successor bulletin), 2020 and for the period from September 2, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior with respect to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited and unaudited 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 Statement and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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 RepresentativesRepresentative, 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).
(h) Prior to the Closing DateDate 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.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, Exchange satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(k) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Public Warrant Agreement, the Private Warrant Agreement, the Founder’s Subscription Agreement, the Sponsor Co-Investor’s Subscription Agreement, the Sponsor Warrant Purchase Agreement, the Sponsor Co-Investor Warrant Subscription Purchase Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing DateDate or the settlement date, as the case may be, the Sponsor shall have caused the purchase price for the Sponsor Private Placement Warrants and the Sponsor Co-Investor Private Placement Warrants to be wired to the Company and the Company shall direct the trustee to deposit such funds into the Trust Account and to hold such funds in the Trust Account such that the cumulative amount deposited into the Trust AccountAccount as of such Closing Date or settlement date shall equal the product of the number of Units sold in the Offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii) hereof shall have been issued as of the Closing DateDate or the settlement date, as the case may be, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 (Andretti Acquisition Corp.), Underwriting Agreement (Andretti Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 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 Representatives shall have requested and caused ▇received from ▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the one of its Chief Financial Officer Executive Officers and its principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signer signers of such certificate has 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 DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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).
(fe) The Company shall have requested and caused Withum WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate 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 September 3, 2020 and for the period from September 2[●], 2020 (date of inception) through September 3[●], 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing DateDate 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) Prior to the Closing DateDate 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(ki) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, Letter and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lj) At least one Business Day prior to the Closing DateDate 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.
(mk) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Sources: Underwriting Agreement (TWC Tech Holdings II Corp.), Underwriting Agreement (TWC Tech Holdings II 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 each 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLPLedgewood PC, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each letter dated the Closing 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 Calder▇▇▇▇▇▇, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Underwriters, such opinion or its 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer of such certificate 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 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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 Withum 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 thereunder, and that they have reporting on the procedures performed a review by them in respect of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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 information 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 (fg) include any supplement thereto at the date of the applicable letter.
(gh) 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 (fg) 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, 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Registration Rights Agreement, the Units Subscription Agreement the Insider Letter, the Registration and Shareholder Rights Agreement Letter and the Administrative Services Agreement.
(l) 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.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 & Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Underwriters, at ▇▇▇▇ 1345 Avenue of the ▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (FTAC Olympus Acquisition Corp.), Underwriting Agreement (FTAC Olympus 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 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 Representatives its opinions and negative assurance letter, each 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 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.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signer signers of such certificate has 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 DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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).
(f) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate 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 September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3year ended December 31, 2020, provided provided, however, that the cutoff date shall not be more than two business days prior to such Execution Time or Closing DateDate 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 (fe) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(h) Prior to the Closing DateDate 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.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment 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 Service Agreement.
(l) [Intentionally omitted.]
(m) At least one Business Day prior to the Closing DateDate 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.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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: ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Sources: Underwriting Agreement (Independence Holdings Corp.), Underwriting Agreement (Independence 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 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 ▇Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letterRepresentative their opinion, each dated the Closing Date and addressed to the Representatives, Representative in a the form reasonably acceptable to the Representativesattached as Exhibit A hereto.
(c) The Company Representative shall have requested and caused received from ▇▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum KPMG to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 unaudited interim financial statements information of the Company as of September 3___, 2020 2010 and for the period from September 2___, 2020 2010 (date of inception) through September 3to ___, 20202010, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; if any; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information as of ___, 2010 and for the period ___, 2010 (inception) to ___, 2010; carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings, if any, of the stockholders, directors and audit, governance and nominating committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to ___, 2010, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus; and
(ii2) with respect to the period subsequent to ___, 2010, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the ___, 2010 balance sheet included in the Registration Statement, the Statutory Prospectus and the Prospectus, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance have been authorized for quotation on the New York Stock ExchangeOTC Bulletin Board, and satisfactory evidence of which such actions shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Services Agreement and each of the Insider LetterLetters.
(k) On or before the Effective Date, the Registration and Shareholder Rights Agreement and Representative shall have received the Administrative Services AgreementSecondary Market Trading Survey from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(gg) 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 (Hicks Acquisition CO II, Inc.), Underwriting Agreement (Hicks Acquisition CO II, 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, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested furnished to the Representatives the opinion, dated the Closing Date, in the form and caused ▇substance as set forth in Exhibit A-1 hereto, and the letter, dated the Closing Date, in the form and substance as set forth in Exhibit A-2 hereto, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 or such other counsel reasonably acceptable to the Representatives.
(c) The Company Representatives shall have requested and caused received from ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & ▇▇▇▇ Bird LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Statutory ProspectusDisclosure 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 may reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer Chairman of the Board or the President or any Executive or Senior Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Prospectus and any amendment or supplement theretoFinal Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the 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;
(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’s knowledge, threatened; and
(iii) since 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 Effectmaterial adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, 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).
(fe) The Company At the Execution Time and the Closing Date, Ernst & Young LLP shall have requested and caused Withum to have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of 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 Act and the respective applicable published 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 September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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 In their opinion the audited financial statements and financial statement schedules schedules, if any, included or incorporated in the Registration Statement, the Statutory Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations;
(ii) On the basis of a reading of the latest unaudited condensed consolidated financial statements made available by the Company and its subsidiaries; carrying out certain procedures specified by the Public Company Accounting Oversight Board (United States) for a review of interim financial information as described in AU Section 722, Interim Financial Statements (but not an audit in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the shareowners and the board of directors of the Company through a specified date no more than five business days prior to the date of such letter; and inquiries through a specified date no more than five business days prior to the date of such letter of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements in or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, nothing came to their attention which caused them to believe that:
(1) the amounts included in the unaudited “Income Statement Information”, if any, included in the Registration Statement, the Preliminary Prospectus and the Final Prospectus do not agree with the amounts set forth in the unaudited condensed consolidated financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus; and the amounts in the “Selected Financial Data” included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus do not agree with the corresponding amounts in the unaudited or audited financial statements from which such amounts were derived;
(2) any unaudited condensed consolidated financial statements included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus do not comply in form in all material respects with applicable accounting requirements and with the published rules and regulations adopted of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q or, where applicable, Form 8-K under the Exchange Act; and said unaudited condensed consolidated financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus; or
(3) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, there were any changes, at the date of the latest consolidated financial statements (if any) available prior to the date of the letter, in the capital stock of the Company (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus), increases in the long-term debt or decreases in the consolidated net current assets or the shareowners’ equity of the Company as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from the date of the most recent financial statements included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus to the date of the latest consolidated financial statements (if any) available prior to the date of the letter there were any decreases, as compared with the corresponding period in the preceding year, in net operating revenues or in the total or per share amounts of income before extraordinary items or of net income of the Company and its subsidiaries, except in all instances for changes or decreases that the Registration Statement, the Preliminary Prospectus and the Final Prospectus discloses have occurred or may occur or as set forth in such letter, in which case the letter shall be accompanied by an explanation by the CommissionCompany as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(iiiii) they have performed On the basis of performing certain other procedures, as determined and specified procedures as a result of which they determined that by the Underwriters, relating to 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 and subject to the Companyinternal controls of the accounting systems of the Company and its subsidiaries) set forth included or incorporated by reference in the Registration Statement, the Statutory Preliminary Prospectus and the Prospectus, including the Final Prospectus that such information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the CompanyCompany and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) 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 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 Company and the Prospectus (exclusive of any supplement thereto) its subsidiaries 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 the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA The Representatives shall not have raised any objection received from counsel, satisfactory to the Representatives, such opinion or opinions, dated the Closing Date, with respect to compliance with the fairness or reasonableness laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the underwriting or Securities, the Prospectus and other arrangements related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of the transactions contemplated herebyenabling them to pass upon such matters.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided If indicated in Schedule I hereto as being applicable to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies offering of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this AgreementSecurities, the Representatives shall have received a certificate satisfying an opinion from tax counsel for the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably Company, satisfactory to the RepresentativesRepresentatives and dated the Closing Date, along with such additional supporting documentation confirming their opinion as to United States tax matters set forth in the Representatives have requested in connection with the verification of the foregoing certificateFinal Prospectus. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwritersits counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the 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 (Coca Cola Co), Underwriting Agreement (Coca Cola Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum WithumSmith to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 2May 19, 2020 2015 (date of inception) through September 3June 5, 20202015, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, each of the Insider LetterLetters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $1,750,000 of the purchase price for the Private Placement Warrants to be deposited funded to the Company and the remainder to be funded into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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: ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Global Partner Acquisition Corp.), Underwriting Agreement (Global Partner 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2January 7, 2020 (date 2021(date of inception) through September 3March 29, 20202021, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing 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 and Shareholder Stockholder Rights Agreement and the Administrative Services Support Agreement.
(k) [Reserved].
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $7,000,000 of the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount and the remaining $3,000,000 to be paid to the Company.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 2 contracts
Sources: Underwriting Agreement (Conyers Park III Acquisition Corp.), Underwriting Agreement (Conyers Park III 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 G▇▇▇▇▇▇▇▇ & T▇▇▇▇▇ ▇▇, 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes & R▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum M▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2February 26, 2020 2021 (date of inception) through September 3March 18, 20202021, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 RepresentativesRepresentative, 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Private Placement Agreement, the Insider Letter, Letter and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one (1) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 & R▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, at 599 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention▇ttention: ▇▇A▇▇ ▇. ▇▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Galata Acquisition Corp.), Underwriting Agreement (Galata Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Shareholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholder of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) 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 threatenedinitiated or, to the knowledge of the Company, threatened pursuant to Section 8A of the Securities Act.
(b) The Company shall have requested and caused ▇▇Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP and Faegre Drinker B▇▇▇▇▇ & R▇▇▇▇ LLP, counsel counsels for the Company, to have furnished to the Representatives its their opinions and negative assurance letterletters, each dated the Closing Date Date, or any such settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable and substance satisfactory to the Representatives.
(c) The Company Selling Shareholder shall have requested and caused ▇▇▇▇▇▇ and CalderRopes & Gray LLP, Cayman Islands counsel for the CompanySelling Shareholder, to have furnished to the Representatives its opinions their opinion dated the Closing Date or any such settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable and substance satisfactory to the Representatives.
(d) The Representatives shall have received from Ropes & S▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date or any such settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Shareholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer principal executive officer or the President and the principal financial or accounting officer of the Company, dated the Closing DateDate or any such settlement date, as applicable, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, 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 or any such settlement date, as applicable, with the same effect as if made on the Closing Date or any such 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 DateDate or any such 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 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 Effectmaterial 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).
(f) The Selling Shareholder shall have furnished to the Representatives a certificate, signed by an authorized officer of the Selling Shareholder, dated the Closing Date or any such settlement date, as applicable, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Agreement, and that the representations and warranties of the Selling Shareholder in this Agreement are true and correct in all material respects on and as of the Closing Date or any such settlement date, as applicable, to the same effect as if made on the Closing Date or any such settlement date, as applicable.
(g) The Company shall have requested and caused Withum RSM US LLP to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or any such settlement date, lettersas applicable, letters (which may refer to letters previously delivered to one or more of the Representative), each dated respectively as of the Execution Time and as of the Closing DateDate or any such settlement date, as applicable, 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 as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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 Final Prospectus; provided that the letter delivered on the Closing Date and reported on by them comply any such settlement date shall use a “cut-off date” not earlier than three business days prior to such Closing Date or any such settlement date, as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letterapplicable.
(gh) 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business6, 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).
(hi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on At the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated Exhibit A hereto signed by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Datepersons listed on Schedule IV hereto, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory each case addressed to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 & S▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇7▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (V2X, Inc.), Underwriting Agreement (V2X, 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 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 Representatives shall have requested received the opinion and caused letter, dated as of the Closing Date or settlement date, as applicable, and addressed to the Representatives of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to in 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 Representativesof Schedule IV hereto.
(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 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signer signers of such certificate has 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 DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or 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 as of September 3, 2020 and for the period from September 2December 1, 2020 (date of inception) through September 3December 7, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing DateDate 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 described 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 by 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).
(hg) Prior to the Closing DateDate 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(ki) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider LetterForward Purchase Agreement, the Registration and Shareholder Rights Agreement Insider Letter and the Administrative Services Registration Rights Agreement.
(lj) At least one Business Day prior to the Closing DateDate 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.
(mk) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Sources: Underwriting Agreement (Thimble Point Acquisition Corp.), Underwriting Agreement (Thimble Point 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 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 ▇▇▇▇▇▇▇▇ White & ▇▇▇▇▇ Case, 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(dc) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2November 17, 2020 (date of inception) through September 3December 17, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Datedate hereof, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, Letter and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 2 contracts
Sources: Underwriting Agreement (Priveterra Acquisition Corp.), Underwriting Agreement (Priveterra 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 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 ▇▇▇L▇▇▇▇▇ & W▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes Weil, Gotshal & M▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum G▇▇▇▇ ▇▇▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 2October 22, 2020 2018 (date of inception) through September 3November 6, 20202018, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, Letters and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 & M▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇7▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇A▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (RMG Acquisition Corp.), Underwriting Agreement (RMG Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇, Gotshal & ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the CompanyCompany (“U.S. Counsel”), to have furnished to the Representatives Representative its opinions opinion and negative assurance letter, each dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable satisfactory to the RepresentativesRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder▇▇▇▇▇▇ (Cayman) LLP, Cayman Islands counsel for the Company, Company (“Cayman Counsel”) to have furnished to the Representatives Representative its opinions dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable satisfactory to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Ropes & ▇▇▇▇ Gray LLP, counsel for the UnderwritersUnderwriters (“Underwriter Counsel”), such opinion or opinions and negative assurance letter, each dated the Closing Date or the Option Closing Date, as the case may be, 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.
(e) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or the Option Closing Date, as the case may be, to the effect that the signer signers of such certificate has 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 or Option Closing Date, as applicable, with the same effect as if made on the Closing Date or Option Closing 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 or Option Closing 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).
(f) The Company shall have requested and caused Withum CBIZ to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date or the Option Closing Date, as the case may be, letters, dated respectively as of the Execution Time and as of the Closing Date and as of the Option Closing Date, as applicable, in form and substance satisfactory to the RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 2November 4, 2020 2025 (date of inception) through September 3December 31, 20202025, 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 (fe) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 RepresentativesRepresentative, 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).
(h) Prior to the Closing Date or the Option Closing 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.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, Nasdaq Global Market satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(k) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Founder’s Subscription Agreement, the Founder’s Placement Shares Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or the Option Closing Date, as the case may be, the Sponsor shall have caused the purchase price for the Private Placement Warrants Shares 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 AccountAccount as of such Closing Date or settlement date shall equal the product of the number of Ordinary Shares sold in the Offering as of such Closing Date or settlement date and the public offering price per Ordinary Share as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units Ordinary Shares in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(jj) hereof shall have been issued as of the Closing DateDate or the settlement date, as the case may be, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before The several obligations of the date Underwriters to purchase Option Securities hereunder are subject to the delivery of this Agreement, the Representatives shall have received Representative on the applicable Option Closing Date of the following:
(i) a certificate satisfying signed by the beneficial ownership due diligence requirements Chief Executive Officer and the principal financial or accounting officer of the Financial Crimes Enforcement Network Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(e) hereof remains true and correct as of such Option Closing Date;
(“FinCEN”ii) from an opinion and negative assurance letter of US Counsel for the Company 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) an opinion of Cayman Counsel, 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) an opinion and negative assurance letter of Underwriter Counsel, 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(d) hereof;
(v) a letter dated the Option Closing Date, in form and substance reasonably satisfactory to the RepresentativesRepresentative, along with such additional supporting documentation from CBIZ substantially in the same form and substance as the Representatives have requested in connection letter furnished to the Underwriters pursuant to Section 6(f) hereof; provided that the cutoff date shall not be more than two Business Days prior to such Option Closing Date; and
(vi) such further information, certificates and documents as the Representative may reasonably request with respect to the verification issuance of the foregoing certificatesuch 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 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 RepresentativesRepresentative. 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 & ▇▇▇▇ Gray LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Fortress Value Acquisition Corp. V), Underwriting Agreement (Fortress Value Acquisition Corp. V)
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 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 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(dc) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2August 28, 2020 2018 (date of inception) through September 3October 18, 20202018, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider LetterLetters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 2 contracts
Sources: Underwriting Agreement, Underwriting Agreement (Gores Metropoulos, 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Winston & ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes & Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review (i) an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2April 24, 2020 2019 (date of inception) through September 3April 30, 20202019 and (ii) a review of the financial statements of the Company for the period from May 1, 2019 through June 30, 2019, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 RepresentativesRepresentative, 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeThe Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Unit Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one (1) Business Day prior to the Closing Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants Units to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 & Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Netfin Acquisition Corp.), Underwriting Agreement (Netfin 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum WithumSmith 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 as of September 3, 2020 and for the period from September May 2, 2020 (date 2019(date of inception) through September 3May 13, 20202019, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Stockholder Rights Agreement and the Administrative Services Support Agreement.
(k) [Reserved].
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $8,000,000 of the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount and the remaining $2,000,000 to be paid to the Company.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 2 contracts
Sources: Underwriting Agreement (Conyers Park II Acquisition Corp.), Underwriting Agreement (Conyers Park II 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 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 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 letteropinions, 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(f) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2June 3, 2020 2015 (date of inception) through September 3June 30, 20202015, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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: ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Pace Holdings Corp.), Underwriting Agreement (Pace 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes & ▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review (i) an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2November 17, 2020 (date of inception) through September 3November 30, 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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 2 contracts
Sources: Underwriting Agreement (African Gold Acquisition Corp), Underwriting Agreement (African Gold Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇, 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum KPMG to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 2August 25, 2020 (date of inception) through September 32, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNASDAQ, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Datedate hereof, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, Letters and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 (Yellowstone Acquisition Co), Underwriting Agreement (Yellowstone Acquisition Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 S▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇L▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter, each opinion dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company Representative shall have requested and caused received from M▇▇▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Will & E▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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, or threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum M▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2February 18, 2020 2021 (date of inception) through September 330, 20202021, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 RepresentativesRepresentative, 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed listed, subject to notice of issuance issuance, on the New York Stock ExchangeNasdaq, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one (1) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 M▇▇▇▇▇▇▇▇ Will & E▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇O▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇A▇▇ ▇. ▇▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Signal Hill Acquisition Corp.), Underwriting Agreement (Signal Hill Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ Winston & S▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable satisfactory to the Representatives.
(dc) The Representatives shall have received from Ropes Skadden, Arps, Slate, M▇▇▇▇▇▇ & ▇F▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and Bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2March 27, 2020 2019 (date of inception) through September 3March 31, 20202019, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Subscription Agreement, the Warrant Subscription Purchase Agreement, each of the Insider LetterLetters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor Initial Stockholders shall have caused the purchase price for the Private Placement Warrants to be deposited wired to the Company and the Company shall direct the escrow agent to deposit such funds into the Trust AccountAccount and to hold such funds in escrow therein.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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, M▇▇▇▇▇▇ & ▇F▇▇▇ LLP, counsel for the Underwriters, at 3▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ , ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: G▇▇▇▇ ▇. ▇▇▇▇ and J▇▇▇▇▇▇▇ ▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Diamond Eagle Acquisition Corp. \ DE), Underwriting Agreement (Diamond Eagle Acquisition Corp. \ DE)
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 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLPLedgewood, PC, 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 2January 22, 2020 2021 (date of inception) through September 3January 25, 20202021, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNASDAQ, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Datedate hereof, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Services Agreement, the Warrant Placement Unit Subscription Agreement, the Insider Letter, Letter and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office offices of Ropes ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ , ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Belong Acquisition Corp.), Underwriting Agreement (Belong Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and CalderWalkers, 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 & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(f) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2April 9, 2020 2019 (date of inception) through September 3April 23, 20202019, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider LetterLetters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 2 contracts
Sources: Underwriting Agreement (Oaktree Acquisition Corp.), Underwriting Agreement (Oaktree 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 a form reasonably acceptable to the Representative.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the CompanyUnderwriters, to have furnished to the Representatives its opinions and negative assurance lettersuch opinion or opinions, 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review (i) an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2August 10, 2020 (date of inception) through September 3August 21, 2020 and (ii) a review of the financial statements of the Company for the period from August 10, 2020 through [●], 2020, provided that the cutoff date shall not be more than two business days 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 RepresentativesRepresentative, 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeThe Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription AgreementPrivate Placement Agreements, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Support Agreement.
(lk) At least one (1) Business Day prior to the Closing Effective Date, each of the Sponsor and ▇. ▇▇▇▇▇ Principal Investments LLC shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Sources: Underwriting Agreement (Spartacus Acquisition Corp), Underwriting Agreement (Spartacus Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten 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 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 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the Representatives, Representative in a form reasonably acceptable and substance satisfactory to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 2December 31, 2020 2013 (date of inception) through September 3March 31, 20202014, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreements, the Forward Purchase AgreementContract, the Warrant Subscription Agreement, each of the Insider Letters, the ROFR Letter, the Registration and Shareholder Rights Sponsor Agreement and the Administrative Services Agreement.
(lk) At least one Business Day prior to the Closing Date, the Sponsor Sponsors shall have caused the purchase price for the Private Placement Warrants to be deposited wired to the Company and the Company shall direct the trustee to deposit such funds, into the Trust AccountAccount and to hold such funds in escrow therein.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 (Terrapin 3 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 a form reasonably acceptable to the Representative.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the CompanyUnderwriters, to have furnished to the Representatives its opinions and negative assurance lettersuch opinion or opinions, 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review (i) an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2June 16, 2020 (date of inception) through September 3June 30, 2020 and (ii) a review of the financial statements of the Company for the period from June 16, 2020 through [●], 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 RepresentativesRepresentative, 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeThe Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Support Agreement.
(lk) At least one (1) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Software Acquisition Group Inc. II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance assurances letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable substantially to the Representativeseffect set forth in Exhibits A-1 and A-2 respectively.
(c) The Company Selling Stockholders shall have requested and caused ▇▇▇▇▇▇▇▇▇▇ and Calder▇▇▇▇▇▇▇ LLP, Cayman Islands counsel for the CompanySelling Stockholders, to have furnished to the Representatives its opinions their opinion dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable substantially to the Representativeseffect set forth in Exhibit A-3.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and each Selling Stockholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed on behalf of the Company by the Chairman of the Board or the Chief Financial Executive Officer or an Executive Vice President or Senior Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, 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 amendment or supplement thereto), there has been no Material Adverse Effectmaterial 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 Final Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company Each Selling Stockholder shall have requested and caused Withum to have furnished to the RepresentativesRepresentatives a certificate, signed by the Chairman of the Board or the President or 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, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Agreement, and that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The Underwriters shall have received, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered from Deloitte & Touche LLP, 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 the Company as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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 Final Prospectus; provided that the letter delivered 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 Closing Date shall use 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 “Dilutioncut-off date” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at not earlier than the date of the letterhereof.
(gh) 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 (fg) 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 CompanyCompany 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 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).
(hi) 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.
(ij) FINRA Subsequent to the Execution Time, there shall not have raised been any objection with respect to decrease in the fairness or reasonableness rating of any of the underwriting or other arrangements Company’s debt securities by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the transactions contemplated herebyExchange 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.
(jk) The Representatives shall have received letters, dated, respectively, the date hereof and the Closing Date, executed by the Chief Financial Officer or Chief Accounting Officer of the Company, in the form of Exhibit B-1 and B-2 respectively.
(l) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(km) On or prior to or at the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received from each Selling Stockholder a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form properly completed and substance reasonably satisfactory to the Representativesexecuted IRS Form W-9 or an IRS Form W-8, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificateappropriate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentatives . Notice of such cancellation shall be given to the Company and each Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative, in a form reasonably acceptable to the Representative.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the CompanyUnderwriters, to have furnished to the Representatives its opinions and negative assurance lettersuch opinion or opinions, 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the co-Chief Financial Officer Executive Officers and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2January 19, 2020 2021 (date of inception) through September 330, 20202021, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 RepresentativesRepresentative, 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeThe Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Private Placement Agreement, the Overfund Loan, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Support Agreement.
(lk) At least one (1) Business Day prior to the Closing Effective Date, the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Roman DBDR Tech Acquisition Corp. II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Underwritten Securities Units which it has agreed to purchase hereunder are subject to the accuracy (as of the date hereof, and as of each Closing Date) of and compliance with the representations and warranties of the Company and the Option SecuritiesSelling Shareholders herein, to the performance by the Company and the Selling Shareholders of their obligations hereunder, and to the following conditions:
(i) The Registration Statement, including any 462(b) Registration Statement, shall have become effective and the Representatives shall have received notice thereof not later than 10:00 A.M., Dallas time, on the date on which the amendment to the registration statement originally filed with respect to the Offered Securities or to the Registration Statement, as the case may be, shall be subject to containing information regarding the accuracy initial public offering price of the representations Units has been filed with the Commission, or such later time and warranties on date as shall have been agreed to by the part of the Company contained herein as of the Execution TimeRepresentatives;
(ii) If required, the Closing Date Prospectus and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any amendment or supplement thereto, thereto shall have been filed with the Commission in the manner and within the time period required by Rule 434 and 424(b); and ) under the Act;
(iii) On or prior to each Closing Date 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 or a similar purpose shall have been instituted or threatenedshall be pending or, to the best knowledge of the Representatives and the Company, shall be contemplated by the Commission;
(iv) Qualification under the securities laws of such states as the Representatives may designate of the issue and sale of the Offered Securities upon the terms and conditions herein set forth or contemplated and containing no provision unacceptable to the Representatives shall have been secured;
(v) No stop order shall be in effect denying or suspending effectiveness of such qualifications, nor shall any stop order proceedings with respect thereto be instituted or pending or, to the best knowledge of the Company and the Representatives, threatened under such laws;
(vi) If the Company has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Units and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the First Closing Date the Company shall have provided evidence satisfactory to the Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations; and
(vii) Any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters.
(b) The Company No amendments to the Registration Statement, any Preliminary Prospectus or the Prospectus to which the Representatives or counsel for the Underwriters shall have requested objected, after having received reasonable notice of a proposal to file the same, shall have been filed.
(c) The Representatives shall not have discovered and caused ▇▇▇disclosed to the Company prior to the respective Closing Dates that the Registration Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which, in the reasonable opinion of counsel for the Underwriters, is material, or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(d) At the First Closing Date, the Representatives shall have received the opinion, together with copies of such opinion for each of the other Underwriters, dated as of the First Closing Date, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPL.L.C., 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer of such certificate 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).
(f) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement to the effect that: (i) the Company has been duly incorporated and all obligations is validly existing as a corporation in good standing under the laws of the Underwriters hereunder may be canceled atState of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Registration Statement and Prospectus and is duly qualified to do business as a foreign corporation and is in good standing in all other jurisdictions in which the nature of its business or at any time prior tothe character or location of its properties requires such qualification, except where the Closing Date by the Representatives. Notice of such cancellation shall be given failure 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.so qualify will not have a Material Adverse Effect;
Appears in 1 contract
Sources: Underwriting Agreement (Streamedia Communications 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 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 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 Representatives shall have requested and caused ▇received from ▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the one of its Chief Financial Officer Executive Officers and its principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signer signers of such certificate has 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 DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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).
(fe) The Company shall have requested and caused Withum WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate 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 September 3, 2020 and for the period from September 2July 10, 2020 (date of inception) through September 3July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing DateDate 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) Prior to the Closing DateDate 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(ki) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, Letter and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lj) At least one Business Day prior to the Closing DateDate 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.
(mk) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Sources: Underwriting Agreement (TWC Tech Holdings II 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 V▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(dc) The Representatives shall have received from Ropes & Ellenoff G▇▇▇▇▇▇▇ & Schole LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusGeneral 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 request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum RSM 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 it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2June 29, 2020 2017 (date of inception) through September 3December 31, 20202017, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 General 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeThe Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreements, the Subscription Agreements, the Forfeiture Agreements, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Support Agreement.
(lk) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 & Ellenoff G▇▇▇▇▇▇▇ & Schole LLP, counsel for the Underwriters, at ▇1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: S▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (LF 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 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and CalderWalkers, 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 & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer of such certificate 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).
(f) The Company shall have requested and caused Withum 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 as of September 3August 7, 2020 and for the period from September 2August 5, 2020 (date of inception) through September 3August 7, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider LetterLetters, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 (Oaktree 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 contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 211, 2020 (date of inception) through September 314, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing 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 Private Placement CAPSTM Purchase Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $3,000,000 of the purchase price for the Private Placement Warrants CAPSTM to be deposited into the Trust AccountAccount and the remaining $2,000,000 to be paid to the Company.
(ml) No order preventing or suspending the sale of the Units CAPSTM in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 1 contract
Sources: Underwriting Agreement (Periphas Capital Partnering 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 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 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(dc) The Representatives shall have received from Ropes Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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, 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 furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation of the Company is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused Withum ▇▇▇▇▇▇ 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 as of September 3, 2020 and for the period from September 2March 21, 2020 2017 (the date of inception) through September 3April 20, 20202017, 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 Representatives may reasonably request. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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, 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) 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.
(ji) The Securities shall be duly listed listed, subject to notice of issuance issuance, on the New York Stock ExchangeNASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing 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 Registration Rights Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Administrative Services Agreement and the Administrative Services AgreementInsider Letter.
(lk) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(nm) On or before Prior to the date of this AgreementClosing Date, the Representatives Company shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory furnished to the RepresentativesRepresentatives such further information, along with such additional supporting documentation certificates and documents as the Representatives have requested in connection may reasonably request and are customary with the verification offerings of the foregoing certificatethis type. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Federal Street 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 V▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.Representatives.1
(dc) The Representatives shall have received from Ropes & Ellenoff G▇▇▇▇▇▇▇ & Schole LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusGeneral 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 request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum RSM 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 it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2June 29, 2020 2017 (date of inception) through September 3December 31, 20202017, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 General 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeThe Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreements, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Support Agreement.
(lk) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 & Ellenoff G▇▇▇▇▇▇▇ & Schole LLP, counsel for the Underwriters, at ▇1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: S▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (LF 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 Fund, the Manager and the Subadviser contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 5 hereof, to the accuracy of the statements of the Company Fund, the Manager and the Subadviser made in any certificates pursuant to the provisions hereof, to the performance by the Company Fund, the Manager or the Subadviser of its their obligations hereunder or to the Representatives’ waiver in writing thereof 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, to the knowledge of the Fund, the Manager or threatenedthe Subadviser, 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & ▇▇▇▇ LLP, counsel for the UnderwritersFund, such opinion or opinions and negative assurance letterto have furnished to the Representatives its opinion, each dated the Closing Date and addressed to the RepresentativesRepresentatives on behalf of the Underwriters, substantially in the form set forth on Exhibit A hereto.
(c) You shall have received on the Closing Date an opinion of in-house counsel for the Manager, dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, substantially in the form set forth on Exhibit B hereto.
(d) You shall have received on the Closing Date an opinion of in-house counsel for the Subadviser, dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, substantially in the form set forth on Exhibit C hereto.
(e) The Representatives shall have received from ▇▇▇▇▇ & Lardner LLP, Maryland counsel for the Fund, such opinion or opinions, dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) Securities and other related matters as the Representatives may reasonably require, and the Company Fund shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company Representatives shall have received from Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Preliminary Prospectus and the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Fund, the Manager and the Subadviser shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) Each of the Fund, the Manager and the Subadviser shall have furnished to the Representatives a certificate certificate, signed, in the case of the CompanyFund and the Manager, signed by the Chief Financial Officer Chairman of the CompanyBoard or the President or Executive Vice President and the principal financial or accounting officer of each of the Fund and the Manager, as the case may be, and in the case of the Subadviser, by the Chairman of the Board or the President or Executive Vice President or Director and the principal financial or accounting officer or controller, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement Statement, each 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, the Manager or the Subadviser, as 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 Fund, the Manager or the Subadviser, as the case may be, 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 DateDate (to the extent not waived in writing by the Representatives);
(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 CompanyFund’s, the Manager’s or the Subadviser’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 (exclusive of any supplement thereto) (with respect to the certificate of the Fund) and since the date of the Prospectus (exclusive of any supplement thereto) (with respect to the certificates of the Manager and the Subadviser), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), business prospects, earnings, business or properties of the Fund, the Manager or the Subadviser, 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 Registration Statement, each Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto)Prospectus.
(fh) The Company Fund shall have requested and caused Withum KPMG LLP to have furnished to the RepresentativesRepresentatives on behalf of the Underwriters, 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 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 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 as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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 each 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 CommissionRegulations; 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 CompanyFund) set forth in the Registration Statement, the Statutory each Preliminary Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “CapitalizationSummary of Fund Expenses” in the Statutory any Preliminary Prospectus and the Prospectus, agrees with the accounting records of the CompanyFund, excluding any questions of legal interpretation. References to each Preliminary Prospectus and the Prospectus in this paragraph (fh) include any supplement thereto at the date of the letter.
(gi) 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 (fh) of this Section 6 8 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) ), business prospects, earnings, business or prospects properties of the CompanyFund, the Manager and the Subadviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Registration Statement, each 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 each Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto).
(hj) The Manager shall deliver to each of the other parties to the Fee Agreements copies of the Fee Agreements, executed by the Manager and dated the Effective Date, together with reproduced copies of such agreements executed by the Manager for each of the other parties thereto.
(k) The Securities shall have been listed and admitted and authorized for trading on the Exchange, and satisfactory evidence of such listing shall have been provided to the Representatives.
(l) The Representatives on behalf of the Underwriters shall have received on the Closing Date a certificate from a duly authorized officer of each of State Street Bank and Trust Company and American Stock Transfer & Trust Company certifying that the Custodian Agreement and the Transfer Agency Agreement, as applicable, is in full force and effect and is a valid and binding agreement of such party, as applicable.
(m) Prior to the Closing Date, the Company Fund, the Manager and the Subadviser shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 8 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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. .
(o) The documents required to be delivered by this Section 6 8 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 1 contract
Sources: Underwriting Agreement (ClearBridge Energy MLP Total Return Fund 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 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 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum KPMG to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, Securities Assignment 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.
(lk) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 ▇▇12▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Units and the Option SecuritiesUnits, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Unitholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company Vanguard Parties and the Selling Unitholder made in any certificates pursuant to the provisions hereof, to the performance by the Company Vanguard Parties and the Selling Unitholder 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and any settlement date pursuant to Section 3 hereof and addressed to the Underwriters, substantially in the form attached hereto as Exhibit B-1.
(c) The Company shall have requested and caused ▇▇▇▇▇, Tarrant & ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance lettertheir opinion, each dated the Closing Date and any settlement date pursuant to Section 3 hereof and addressed to the RepresentativesUnderwriters, substantially in a the form reasonably acceptable to the Representativesattached hereto as Exhibit B-2.
(cd) The Company Selling Unitholder shall have requested and caused ▇▇▇▇▇ ▇▇ and Calder▇▇▇▇▇▇▇▇, Cayman Islands counsel for the CompanySelling Unitholder, to have furnished to the Representatives its opinions their opinion dated the Closing Date and addressed to the RepresentativesUnderwriters, substantially in a the form reasonably acceptable to the Representativesattached hereto as Exhibit B-3.
(de) The Representatives shall have received from Ropes ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and any settlement date pursuant to Section 3 hereof and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Unitholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement Statement, the Disclosure Package, each Preliminary Issuer Free Writing Prospectus, the Prospectus and Final Prospectus, any amendment supplements or supplement theretoamendments to any of the foregoing, each electronic road show used in connection with the offering of the Units, 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 the settlement date pursuant to Section 3 hereof, as the case may be) with the same effect as if made on the Closing Date (or any settlement date pursuant to Section 3 hereof, 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 at or prior to the Closing DateDate (or the settlement date pursuant to Section 3 hereof, as the case may be);
(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 Effectmaterial 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).
(fg) The Selling Unitholder shall have furnished to the Representatives a certificate, signed by an officer of the Selling Unitholder, 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, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Agreement, in each case as they relate to the Selling Unitholder, and that the representations and warranties of the Selling Unitholder 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.
(h) The Company shall have requested and caused Withum BDO USA, LLP to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date pursuant to Section 3 hereof, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date pursuant to Section 3 hereof, in form and substance satisfactory to the Representatives, confirming that they are a it is an independent registered public accounting firm that is independent with respect to the Company Company, the private sellers and their affiliates 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 September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, PCAOB and stating their conclusions and findings with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in effect that:connection with registered public offerings.
(i) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date and any settlement date pursuant to Section 3 hereof, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date pursuant to Section 3 hereof, in their opinion form and substance satisfactory to the audited financial statements and financial statement schedules included in Representatives, confirming that it is an independent registered public accounting firm with respect to the Registration StatementCompany, the Statutory Prospectus private sellers and their affiliates within the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements meaning of the Act and the related 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 Commission thereunder and the Prospectus, including the information set forth under the captions “Dilution” PCAOB and “Capitalization” in the Statutory Prospectus stating their conclusions and the Prospectus, agrees findings with the accounting records of the Company, excluding any questions of legal interpretation. References respect to the Prospectus financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in this paragraph (f) include any supplement thereto at the date of the letterconnection with registered public offerings.
(gj) 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 (fSection 6(i) of this Section 6 hereof or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 Units 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).
(hk) The Company shall have requested and caused D&M to have furnished to the Representatives, at the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, letters, dated as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, respectively, in form and substance satisfactory to the Representatives, covering certain matters relating to information about the reserves of the Company presented in the Disclosure Package (with respect to a letter dated as of the Execution Time) or the Final Prospectus (with respect to letters dated the Closing Date and any settlement date pursuant to Section 3 hereof).
(l) The Units shall have been listed and admitted and authorized for trading on NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company, each addressed to the Representatives.
(n) Prior to the Closing DateDate or any settlement date pursuant to Section 3 hereof, as the case may be, the Company Vanguard Parties and the Selling Unitholder shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 and the Selling Unitholder 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 DateDate and any settlement date pursuant to Section 3 hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Vanguard Natural Resources, LLC)
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 Issuer contained herein as at the Time of the Execution TimeSale, the Closing Date and any settlement date pursuant to Section 3 hereofdate, to the accuracy of the statements of the Company Issuer made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuer 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 No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or any notice objecting pursuant to its use Section 8A under the Securities Act, shall be pending before or, to the knowledge of the Issuer, threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been issued timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and no proceedings in accordance with Section 3(a) hereof; and all requests by the Commission for that purpose additional information shall have been instituted or threatenedcomplied with to the reasonable satisfaction of the Representatives.
(b) The Company Issuer shall have requested and caused the General Counsel of the Issuer (or, at the Issuer’s option, one or more other counsel reasonably acceptable to the Representatives) to furnish to the Underwriters such counsel’s opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form set forth in Exhibit B hereto.
(c) Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Issuer, shall have furnished to the Underwriters their opinion and a negative assurance letter, dated the Closing Date and addressed to the Underwriters, substantially in the form set forth in Exhibit C hereto.
(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 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 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 an opinion or opinions and a negative assurance letter, each dated the Closing Date and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, Time of Sale Information and the Prospectus (together as amended or supplemented at the Closing Date) (it being understood that such counsel need not express any comment with respect to the financial statements or any supplement theretoother financial or statistical data that is included in or omitted from the Registration Statement, the Time of Sale Information and the Prospectus) and other related matters as the Representatives may reasonably require, and the Company Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company Issuer shall have furnished to the Representatives a certificate of the CompanyIssuer, signed by the Chief Financial Officer President or an Executive or Senior Vice President and the principal financial or accounting officer of the CompanyIssuer, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Time of Sale Information and the Prospectus, any amendments or supplements to the Registration Statement, the Time of Sale Information and the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) no order suspending the effectiveness of the Registration Statement is in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act is pending before or, to their knowledge, threatened by the Commission;
(ii) the representations and warranties of the Company Issuer in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Change” shall be true and correct in all respects) on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company Issuer 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 Registration Statement, the Time of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse EffectChange, except as set forth in or contemplated in by the Statutory Prospectus Registration Statement, the Time of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company On the date of this Agreement and on the Closing Date, the Issuer shall have requested and caused Withum Ernst & Young LLP to have furnished furnish to the Representatives, at “comfort letters,” dated the Execution Time and at the Closing Date, letters, dated respectively as respective dates of the Execution Time and as of the Closing Datedelivery thereof, in form and substance satisfactory to the Representatives, with respect to both the Issuer and its subsidiaries and Shapell Industries, Inc., confirming that they are a 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 as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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 or incorporated by reference in the Registration Statement, the Statutory Prospectus Time of Sale Information and the Prospectus and reported on by them comply as Prospectus. References 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 Time of Sale Information 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 (fSection 4(f) include any supplement amendments or supplements thereto at the date of the applicable letter.
(g) Subsequent to the Execution Time of Sale or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)Statement, the Statutory Prospectus Time of Sale Information 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 (fSection 4(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 CompanyMaterial Adverse Change, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Registration Statement, the Time of Sale Information and the 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 market the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Statutory Prospectus Time of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Time of Sale, there shall not have been any decrease in the rating of any of the debt securities of the Issuer or any of its subsidiaries by any “nationally recognized statistical rating organization” registered under Section 15(e) of the Exchange Act or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) At the Time of Sale, the Issuer shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each person or entity listed on Exhibit A-1 hereto.
(j) On or prior to the Closing Date, the Issuer shall have furnished to the Representatives a Chief Financial Officer’s Certificate substantially in the form of Exhibit D hereto.
(k) At the Closing Date, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance.
(l) Prior to the Closing Date, the Company Issuer shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 4 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions opinions, letters and certificates mentioned above or elsewhere in this Agreement shall not be 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 Issuer in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall 4 will 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
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 each Guarantor contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and each Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and each Guarantor of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereof and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPPC, counsel for the CompanyCompany and the Guarantors, to have furnished to the Representatives its opinions their opinion and negative assurance letterstatement, each dated the Closing Date and addressed to the RepresentativesRepresentatives substantially in the form set forth in Exhibits B-1 and B-2, in a form reasonably acceptable to the Representativesrespectively.
(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 addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusDisclosure 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Vice Chairman and Chief Financial Executive Officer or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, 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 and each Guarantor 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 and each Guarantor 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 Effectmaterial 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) Each Guarantor shall have furnished to the Representatives a certificate of such Guarantor, signed by the Vice Chairman and Chief Executive Officer or the President and the principal financial or accounting officer of such Guarantor, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of such Guarantor 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 such Guarantor 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.
(f) The Company shall have requested and caused Withum 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 accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited unaudited interim financial statements information of the Company as of September 3, 2020 and for the period from September 2three-month, 2020 (date of inception) through September 3six-month and nine-month periods ended March 31, 20202010, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing DateJune 30, as applicable2010, and stating September 30, 2010 and as at September 30, 2010, in effect that:
(i) in their opinion the audited financial statements accordance with Statement on Auditing Standards No. 100, and financial statement schedules included substantially in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.Exhibit C.
(g) 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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 and the related Guarantees 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).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company and each Guarantor shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The shares of Common Stock issuable upon conversion of the Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(k) On or prior to At the Closing DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) Exhibit A hereto from the Company in form and substance reasonably satisfactory each person listed on Schedule VI hereto addressed to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Rti International Metals 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 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 ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the Representatives, Representative in a the form reasonably acceptable to the Representativesattached as Exhibit A hereto.
(dc) The Representatives Representative shall have received from Ropes Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 2June 28, 2020 2013 (date of inception) through September 3to July 8, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable2013, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered 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, each of the Insider LetterLetters, the Registration and Shareholder Rights Right of First Refusal Agreement and the Administrative Services Agreement.
(lk) 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 wired to the Company and the Company shall direct the escrow agent to deposit such funds into the Trust AccountAccount and to hold such funds in escrow therein.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereofOption 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 or under Section 8A under the Securities Act 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 or under Section 8A under the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included 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).
(fe) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2December 21, 2020 (date of inception) through September 3[●], 20202021, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) 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 shall have delivered will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, Letters and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose or under Section 8A under the Securities Act shall have been instituted or shall have been threatened.
(nm) On or before The several obligations of the date of this Agreement, Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives shall have received on the applicable Option Closing Date of the following:
(i) a certificate satisfying signed by the beneficial ownership due diligence requirements Chief Executive Officer and the principal financial or accounting officer of the Financial Crimes Enforcement Network 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;
(“FinCEN”ii) from opinions and negative assurance letter of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company 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 reasonably satisfactory to the Representatives, along with such additional supporting documentation 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 have requested in connection may reasonably request with respect to the verification issuance of the foregoing certificatesuch 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 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 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 (Gores Technology Partners II, 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 in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company and the Parent Guarantor contained herein as at the Applicable Time, to the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the Execution Time, representations and warranties of the Company and the Parent Guarantor contained herein at the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company or the Parent Guarantor 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 No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or any notice objecting pursuant to its use Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been issued timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act) and no proceedings in accordance with Section 5(a) hereof; and all requests by the Commission for that purpose additional information shall have been instituted or threatenedcomplied with to the reasonable satisfaction of the Representatives.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished furnish to the Representatives its opinions Underwriters an opinion letter and a negative assurance letter, each dated the Closing Date and addressed to substantially in the Representativesforms of Exhibit A and Exhibit B, respectively, hereto and an opinion of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, special regulatory counsel for the Company, dated the Closing Date and substantially in a the form reasonably acceptable to the Representatives.
(c) of Exhibit C hereto. The Company shall have requested and caused the chief legal officer of the Company to furnish to the Underwriters an opinion letter dated the Closing Date with regards to such matters as the Representatives shall reasonably require.
(c) The Underwriters shall have received from ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions letter and negative assurance advice letter, each dated the Closing Date and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the Securities, the Registration StatementIndentures, the Statutory Prospectus, Disclosure Package and the Prospectus (together with any supplement theretoas amended or supplemented at the Closing Date) and other related matters as the Representatives Underwriters may reasonably require, ; and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by (x) the Chief Financial Officer chairman, chief executive officer, president or vice president and (y) the chief financial officer, treasurer or principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary Disclosure Package and the Prospectus, the Prospectus and any amendment or supplement thereto, to the Disclosure Package or the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the Parent Guarantor in this Agreement are true and correct on in all material respects (except to the extent already qualified by materiality, in which case such representations and as of warranties are true and correct in all respects) at the Closing Date with the same effect as if made Applicable Time and on the Closing Date Date, and the Company has and the Parent Guarantor have 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
(iiiii) since the date of the most recent financial statements included or incorporated by reference in each of the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(fe) The Company shall have requested and caused Withum to have furnished to At the Representatives, at the Execution Applicable Time and at the Closing Date, lettersthe Parent Guarantor shall have requested and caused ▇▇▇▇▇ & Young LLP to furnish to the Underwriters a “comfort” letter, dated respectively as of the Execution Time Applicable Time, and a bring-down “comfort letter,” dated as of the Closing Date, respectively, in form and substance reasonably satisfactory to the Representatives, confirming that they are a independent registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Act and the Exchange Act and within the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review meaning of the audited financial statements rules of the Public Company as of September 3, 2020 Accounting Oversight Board and for the period from September 2, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior confirming certain matters with respect to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited and 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 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 (f) include any amendment or supplement thereto at the date of the applicable letter.
(gf) 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified development in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), business or prospects results of operations of the CompanyParent Guarantor and its subsidiaries, whether or not arising from transactions in taken as a whole, and after giving effect to the ordinary course of businessTransaction, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) ), the effect of whichwhich is, in any case referred or would reasonably be expected to in clause (i) or (ii) above, isbecome, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or delivery of the Securities as on the terms and in the manner contemplated by in the Registration Statement (exclusive of any amendment thereof)Statement, the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(g) At the Closing Date, the Company, the Parent Guarantor and the Trustee shall have entered into the applicable Indenture, and the Representatives shall have received counterparts, conformed as executed, thereof.
(h) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of the Securities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act, or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect , as set forth in the closing memorandum relating to the fairness or reasonableness offering of the underwriting or other arrangements of the transactions contemplated herebySecurities.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior Prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants taken all action reasonably required to be deposited into taken by it to have the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing DateSecurities declared eligible for clearance and settlement through DTC. All opinions, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreementletters, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions evidence and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory 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 will be delivered available for inspection at the office of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Business Day prior to the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 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 Representatives shall have requested and caused received from Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & ▇▇▇▇ US LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the one of its Chief Financial Officer Executive Officers and its principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signer signers of such certificate has 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 DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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).
(fe) The Company shall have requested and caused Withum WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate 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 September 3, 2020 and for the period from September October 2, 2020 2017 (date of inception) through September 3October 16, 20202017, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing DateDate 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) Prior to the Closing DateDate 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(ki) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, Letter and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lj) At least one Business Day prior to the Closing DateDate 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.
(mk) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 & Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ US LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ , ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Esq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section Sections 3 and 4 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 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 All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions such counsel all documents and negative assurance letter, each dated the Closing Date and addressed information that they may reasonably request to the Representatives, in a form reasonably acceptable enable them to the Representativespass upon such matters.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special U.S. counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and Calderaddressed to the Representatives, substantially to the effect set forth in Exhibit B-1 hereto.
(d) The Company shall have requested and caused ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and addressed to the Representatives, substantially to the effect set forth in Exhibit B-2 hereto.
(e) [The Company shall have requested and caused [ ], Hong Kong counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially to the effect set forth in Exhibit B-3 hereto.][Subject to discussion with the Company. Milbank, Please provide a form opinion.]
(f) The Company shall have requested and caused Global Law Office, PRC counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially to the effect set forth in Exhibit B-4 hereto.
(g) The Company shall have requested and caused ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Depositary, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially to the effect set forth in Exhibit B-5 hereto.
(h) The Company shall have requested and caused [], counsel to the Selling Shareholders, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially to the effect set forth in Exhibit B-6 hereto.
(i) The Representatives shall have received from Milbank Tweed Hadley & ▇▇▇▇▇▇ LLP, special US counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable and substance satisfactory to the Representatives.
(dj) The Representatives shall have received from Ropes & ▇▇▇▇ LLPCommerce and Finance Law Offices, PRC counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect in form and substance satisfactory 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.
(ek) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the chief financial officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as any 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;
(iii) There has been no adverse legislative or regulatory developments as described in Section 8(k); and
(iiiiv) since the date of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement theretoto the Prospectus), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement theretoto the Prospectus).
(fl) The Representatives shall have received a certificate, dated such Closing Date, of an authorized representative of each Selling Shareholder in which such authorized representative shall state that the representations and warranties of such Selling Shareholder in this Agreement are true and correct and the Selling Shareholders have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such Closing Date.
(m) There shall not have been any material adverse legislative or regulatory developments related to the M&A Rules and Related Clarifications that, in the judgment of the Representatives’ PRC counsel (after consultation with the Company’s PRC counsel), would make it inadvisable to proceed with the public offering or the delivery of the Securities being delivered at the Closing Date on the terms and in the manner contemplated in this Agreement.
(n) The Company shall have requested and caused Withum Deloitte Touche Tohmatsu CPA Ltd. 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 substantially 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 September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letterExhibit C hereto.
(go) 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 (fm) of this Section 6 8 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 CompanyCompany 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 theretoto the Prospectus) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole reasonable 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 amendment or supplement thereto).
(hp) The Company and the Depositary shall have executed and delivered the Deposit Agreement in form and substance satisfactory to the Representatives and the Deposit Agreement shall be in full force and effect.
(q) The Depositary shall have furnished or caused to be furnished to the Representatives certificates satisfactory to the Representatives evidencing the deposit with the Custodian of the Underlying Shares in respect of which ADSs to be purchased by the Underwriters on the Closing Date are to be issued, and the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing such ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request.
(r) At the Execution Time, the Company shall have furnished to the Representatives a Lock-Up Agreement from each officer, director, shareholder and option holder of the Company listed on Schedule IV to this Agreement.
(s) The Company shall have issued a side letter to the Depositary, in a form reasonably agreeable to the Representatives, whereby the Company instructs the Depositary, and the Depositary agrees, not to accept any deposit of Ordinary Shares or issue ADSs for a period of 180 days after the date of the Prospectus and the Company has separately issued an undertaking letter addressed to the Representatives whereby it agrees not to give instruction to the Depositary that will allow the deposit of Ordinary Shares or the issuance of ADSs for the foregoing 180-day period without the consent of the Representatives.
(t) The FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(u) At the Closing Date, the Securities shall have been approved for listing and trading on the New York Stock Exchange, subject only to official notice of issuance and evidence of satisfactory distribution. and
(v) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 8 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 8 shall be delivered at the office of Ropes Milbank Tweed Hadley & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, at 3007 Al▇▇▇▇▇▇▇ ▇▇▇▇▇▇ , ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Linkage Technologies International 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, hereunder 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, the Option Closing Date, if any, and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The If filing the Prospectus, and or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Act or the Securities Act Regulations, the Company shall have been filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required by (without reliance on Rule 424(b424(b)(8) or 164(b) under the Act); and the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof, any Rule 462 Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and issued; no proceedings for that purpose the issuance of such an order shall have been instituted initiated or threatened; and any request of the Commission or the Underwriters for additional information (to be included in the Registration Statement, the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Company Representative shall have requested and caused received confirmation from R▇▇▇▇▇▇▇ B▇▇▇ L▇▇▇▇▇▇▇ G▇▇▇▇▇ G▇▇▇▇▇▇▇ & ▇G▇▇▇▇ LLP, counsel for P.C. that there are no claims to which its representation has been sought and that are outstanding in respect of 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 R▇▇▇▇▇▇▇ and CalderBrog Leinwand G▇▇▇▇▇ G▇▇▇▇▇▇▇ & G▇▇▇▇ P.C., Cayman Islands securities counsel for the Company, to have furnished to the Representatives its opinions Representative their written opinion and Rule 10b-5 negative assurance letter, dated the Closing Date or the Option Closing Date, as applicable, in form and addressed substance reasonably satisfactory to the Representatives, in a form reasonably acceptable to the RepresentativesRepresentative and its counsel.
(d) The Representatives Representative shall have received from Ropes & the Rule 10b-5 negative assurance letter of L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters’ counsel, such opinion or opinions and negative assurance letter, each dated the Closing Date or the Option Closing Date, as applicable, 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 such matters as the Representatives Underwriters may reasonably require, and the Company shall have furnished to such counsel L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Representative shall have received the opinion of Law Offices of D▇▇▇▇▇ ▇. ▇▇▇▇, PLLC, special intellectual property counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance reasonably satisfactory to the Representative and its counsel.
(f) The Representative shall have received the opinion of Blooston, Mordkofsky, Dickens, D▇▇▇▇ & P▇▇▇▇▇▇▇▇▇▇, LLP, general counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance reasonably satisfactory to the Representative and its counsel.
(g) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the Chief Financial Officer of the CompanyCompany or any other officers of the Company acceptable to the Representative in its discretion, dated the Closing Date or the Option Closing Date, as applicable, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Pricing Disclosure Package and the Prospectus and any amendment supplements or supplement thereto, amendments 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 the Option Closing Date, as applicable, with the same effect as if made on the Closing Date or the Option Closing Date, as applicable, 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 or the Option Closing Date, as applicable;
(ii) no stop order or other order (A) suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof or any amendment thereof, or (B) suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued issued, and no proceedings proceeding for that purpose have has been instituted or, to the Company’s their knowledge, threatened; andis contemplated by the Commission or any state or regulatory body;
(iii) since the date of the most recent financial statements included in the Statutory Prospectus Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse EffectChange; and
(iv) the Company has complied with the terms and conditions of this Agreement on its part to be complied with up to the time of closing on the Closing Date or the Option Closing Date, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)applicable,.
(fh) The Representative shall have received on and as of the Closing Date or the Option Closing Date, as applicable, satisfactory evidence of the good standing of the Company and its subsidiary in writing from the applicable Secretary of State of its jurisdiction of organization.
(i) The Company shall have requested and caused Withum the Auditors to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date or the Option Closing Date, lettersas applicable, letters (which may refer to letters previously delivered to the Representative), dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a each is an independent registered public accounting firm that is independent with respect to the Company within the meaning of the Securities Act and the Exchange Act and covering, without limitation, in the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review case of the Former Auditor, the Company’s audited financial statements of the Company as of September 3, 2020 and for the period from September 2year ended December 31, 2020 2014, and in the case of the Current Auditor, the Company’s audited financial statements as of and the year ended December 31, 2015, and the various financial disclosures related thereto contained in the Registration Statement, the Preliminary Prospectus, the Prospectus and the Issuer Free Writing Prospectuses, if any.
(date of inceptionj) through September 3The Company shall have requested and caused the Current Auditor to have furnished to the Representative, 2020, provided that at the cutoff date shall not be more than two business days prior to such Execution Time and at the Closing Date or the Option Closing Date, as applicable, letters (which may refer to letters previously delivered to the Representative), dated respectively as of the Execution Time and stating as of the Closing Date and any settlement date, in effect that:
(i) in their opinion form and substance satisfactory to the audited Representative, confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the Exchange Act and covering, without limitation, IMT’s financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Preliminary Prospectus, the Prospectus and the Prospectus Issuer Free Writing Prospectuses, if any.
(k) The Company shall have requested and reported on by them comply caused the Vislink Auditor to have furnished to the Representative, at the Execution Time and at the Closing Date or the Option Closing Date, as applicable, letters (which may refer to form in all material respects with letters previously delivered to the applicable accounting requirements Representative), dated respectively as of the Execution Time and as of the Closing Date and any settlement date, in form and substance satisfactory to the Representative, confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the related rules Exchange Act and regulations adopted by the Commission; and
(ii) they have performed covering, without limitation, Vislink’s financial statements and certain other specified procedures as a result of which they determined that certain financial 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 contained in the Registration Statement, the Statutory Preliminary Prospectus, the Prospectus and the ProspectusIssuer Free Writing Prospectuses, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letterif any.
(gl) 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)Prospectus, there shall not have been (iA) any change or decrease specified in the letter or letters referred to in paragraph (fh) of this Section 6 4 or (iiB) any changeMaterial Adverse 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 (iA) or (iiB) above, is, in the sole judgment of the RepresentativesRepresentative, 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 Pricing Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(hm) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(n) Prior to the Closing Date or the Option Closing Date, as applicable, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(io) FINRA The Company shall not have raised any objection filed a Listing of Additional Shares form with respect NASDAQ governing the Shares, the Conversion Shares, and the Warrant Shares to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated herebybe listed thereunder.
(jp) NASDAQ shall have approved the listing of the Warrants, subject to official notice of issuance.
(q) The Securities Certificate of Designation shall have been filed with the Secretary of State of Delaware and shall be duly listed subject to notice effective; a filed copy of issuance on the New York Stock Exchange, satisfactory evidence Certificate of which Designation shall have been provided to the RepresentativesUnderwriters and its counsel.
(kr) At the Execution Time, the Company shall have furnished to the Representative Lock-Up Agreements executed by the Lock-Up Parties.
(s) On or prior to the Closing Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 4 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 4 shall be delivered at the office of Ropes & L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated hereinthe Closing Location, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties in all material respects (to the extent any such representation or warranty is not otherwise qualified therein) on the part of the Company contained herein as of the Execution Time, Applicable Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Lovells US LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance lettertheir opinion, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.effect set forth in Exhibit A.
(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 addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & ▇▇▇▇▇ LLP▇▇▇▇▇ LPP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusDisclosure 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 request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer President or any Vice President and the chief financial, chief accounting officer or treasurer of the Company, dated the Closing Date, to the effect that (i) since the signer respective dates as of such certificate has carefully examined which information is given in the Registration Statement each Preliminary and the Prospectus or since the date of this Agreement, there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, consolidated financial position or consolidated results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, otherwise than as set forth or contemplated in the Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(iii) the other representations and warranties of the Company contained in this Agreement Section 1 hereof are true and correct on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date and date of such certificate, (iii) the Company has performed or 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;
date of such certificate, and (iiiv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and and, to their knowledge, no proceedings for that purpose have been instituted or, to initiated or threatened by 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)Commission.
(fe) The Company PricewaterhouseCoopers LLP shall have requested and caused Withum to have furnished to the Representatives, at the Execution Applicable Time and at the Closing Date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Applicable 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 Representatives containing statements and information of the type customarily 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 as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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 in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on information contained or incorporated by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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.
(hf) 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.
(ig) FINRA shall not have raised any objection with respect Subsequent to the fairness or reasonableness execution and delivery of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or this Agreement and prior to the Closing Date, there shall not have been any decrease in the Company shall have delivered to the Representatives executed copies rating of any of the Trust Agreement, Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Warrant Agreement, Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale direction of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificatepossible change. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not required to be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwritersfulfilled, 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 DateDate or by facsimile or electronic mail (including pdf or any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any document so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 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 Representatives shall have requested and caused received from Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & ▇▇▇▇ US LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the one of its Chief Financial Officer Executive Officers and its principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signer signers of such certificate has 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 DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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).
(fe) The Company shall have requested and caused Withum WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate 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 September 3, 2020 and for the period from September October 2, 2020 2017 (date of inception) through September 3October 16, 20202017, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing DateDate 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) Prior to the Closing DateDate 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(ki) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, Letter and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lj) At least one Business Day prior to the Closing DateDate 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.
(mk) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 & Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ US LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ , ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Esq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by each of the Company and the Selling Stockholders of its respective obligations hereunder and to the following additional conditions;:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions an opinion and negative assurance letterstatement, each dated the Closing Date and addressed to the RepresentativesRepresentatives substantially in the form set forth in Exhibits A-1 and A-2, in a form reasonably acceptable to the Representativesrespectively.
(c) The Company Selling Stockholders shall have requested and caused ▇▇▇▇▇▇ and Calder& ▇▇▇▇▇▇▇ LLP, Cayman Islands counsel for the CompanySelling Stockholders, to have furnished to the Representatives its opinions an opinion, dated the Closing Date and addressed to the Representatives, Representatives substantially in a the form reasonably acceptable to the Representativesset forth in Exhibit A-3.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusDisclosure 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, Date to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, and this Agreement and that:
(i) the representations and warranties of the Company contained in Section 1(i) of this Agreement Agreement, including, for the avoidance of doubt, in Section 1(i)(dd) of this Agreement, are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date 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 of the Company 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).
(f) The Representatives shall have received on the Closing Date a certificate, dated the Closing Date and signed by each Selling Stockholder, to the effect that the representations and warranties of such Selling Stockholder are true and correct as of the Closing Date and that such Selling Stockholder has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(g) The Company shall have requested and caused Withum PricewaterhouseCoopers LLP and Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Date letters, dated respectively as of the Execution Time and as of the Closing Date, 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 as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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 substantially 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 Exhibit B and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.Exhibit C.
(gh) 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany 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).
(hi) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates information and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the New York Stock Exchange, Exchange and satisfactory evidence of which such actions shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 and the Selling Stockholders 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 offices of Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be hereunder are subject to the accuracy of the representations and warranties on of Carvana and the part Depositor contained in Section 1 and in certificates of the Company contained herein as any officer of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates Carvana delivered pursuant to the provisions hereof, to the performance by each of Carvana and the Company Depositor of its their respective covenants and other 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 No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued be in effect, and no proceedings for that such purpose shall be pending before or threatened by the Commission and there shall have been instituted no Material Adverse Effect in the condition of Carvana, the Depositor, or their subsidiaries, taken as a whole, from that set forth in (i) the Disclosure Package as of the Applicable Time and (ii) the Registration Statement and the Final Prospectus; and the Representative, for the benefit of the Underwriters, shall have received, on the [Initial] Closing Date, a certificate, dated the [Initial] Closing Date and signed by an executive officer of the Depositor, to the foregoing effect. The officer signing such certificate may rely on the best of his/her knowledge as to proceedings pending or threatened.
(b) The Company Representative, for the benefit of the Underwriters, shall have requested received the following, each in form and caused substance reasonably acceptable to the Representative and, unless stated otherwise, dated as of the [Initial] Closing Date:
(i) A letter, dated as of the date of the Final Preliminary Prospectus, with respect to the Final Preliminary Prospectus, and a letter with respect to the Final Prospectus, each of which is from a nationally recognized accounting firm reasonably acceptable to the Representative;
(ii) A certificate signed by an executive officer of Carvana in which such officer, to the best of his knowledge after reasonable investigation, shall state that the representations and warranties of Carvana and the Depositor in this Agreement and each Transaction Document are true and correct and that Carvana and the Depositor have complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder or thereunder at or before the [Initial] Closing Date;
(iii) Opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 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, Carvana and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer of such certificate 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 DateDepositor;
(iiiv) no stop order suspending the effectiveness An opinion of the Registration Statement or any notice objecting [ ], Arizona counsel to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; andCarvana;
(iiiv) since the date An opinion 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).
(f) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ LLP, counsel to the Servicer;
(vi) An opinion of [ ], Arizona counsel to the Servicer;
(vii) An opinion of [ ], counsel to the Indenture Trustee and Collateral;
(viii) An opinion of in-house counsel to the Indenture Trustee and Collateral;
(ix) An opinion of [ ], counsel to the Issuing Entity[, the Grantor Trust,] [and] the Owner Trustee [and the Grantor Trust Trustee];
(x) An opinion of [ ], counsel to the Asset Representation Reviewer;
(xi) [An opinion of [ ], counsel to the Backup Servicer;]
(xii) Negative assurance letters with respect to the Disclosure Package as of the date hereof and with respect to the Final Prospectus of ▇▇▇▇▇▇▇▇, ▇▇▇ & ▇▇▇▇▇ LLP;
(xiii) Negative assurance letters with respect to the Disclosure Package as of the date hereof and with respect to the Final Prospectus of Sidley Austin LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇counsel for the Underwriters; and
(xiv) Such information, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇certificates, unless otherwise indicated herein, on and documents as the Representative may reasonably request.
(c) On the [Initial] Closing Date, the Indenture shall have been duly qualified under the Trust Indenture Act.
(d) On the [Initial] Closing Date, the Notes and the Certificates shall have been issued by the Issuing Entity.
(e) The Depositor shall have received the ratings letters that at least assign the ratings to the Offered Notes specified in the Ratings Free Writing Prospectus.
Appears in 1 contract
Sources: Underwriting Agreement (Carvana Receivables Depositor LLC)
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 settlement date pursuant to Section 3 hereofOption 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 or under Section 8A under the Securities Act shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the CompanyCompany (“US Counsel”), to have furnished to the Representatives Representative its opinions opinion and negative assurance letter, each dated the Closing Date or Option Closing Date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder▇▇▇▇▇▇ (Cayman) LLP, Cayman Islands counsel for the CompanyCompany (“Cayman Counsel”), to have furnished to the Representatives Representative its opinions opinion, dated as of the Closing Date or Option Closing Date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Ropes & ▇▇▇▇ Freshfields US LLP, counsel for the UnderwritersUnderwriters (“Underwriter Counsel”), such opinion or opinions and negative assurance letter, each dated the Closing Date or Option Closing Date, as applicable, 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.
(e) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or Option Closing Date, as applicable, to the effect that the signer signers of such certificate has 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 or Option Closing Date, as applicable, with the same effect as if made on the Closing Date or Option Closing 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 or Option Closing 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 or under Section 8A under the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included 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).
(f) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time Time, at the Closing Date and at the any Option Closing Date, letters, dated respectively as of the Execution Time Time, as of the Closing Date and as of the Option Closing Date, as applicable, in form and substance satisfactory to the RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 25, 2020 2025 (date of inception) through September 3December 31, 20202025, 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 (f(f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f(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) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, 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).
(h) Prior to the Closing Date or Option Closing 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.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Global Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Unit Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company shall have delivered 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 Letter, Letter and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or Option Closing Date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose or under Section 8A under the Securities Act shall have been instituted or shall have been threatened.
(n) On or before The several obligations of the date Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representative on the applicable Option Closing Date of this Agreement, the Representatives shall have received following:
(i) a certificate satisfying signed by the beneficial ownership due diligence requirements Chief Executive Officer and the principal financial or accounting officer of the Financial Crimes Enforcement Network Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(e) hereof remains true and correct as of such Option Closing Date;
(“FinCEN”ii) from an opinion and negative assurance letter of US Counsel for the Company 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) an opinion of Cayman Counsel, 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) an opinion and negative assurance letter of Underwriter Counsel, 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(d) hereof;
(v) a letter dated the Option Closing Date, in form and substance reasonably satisfactory to the RepresentativesRepresentative, along with such additional supporting documentation from ▇▇▇▇▇▇ substantially in the same form and substance as the Representatives have requested in connection letter furnished to the Underwriters pursuant to Section 6(f) hereof; provided that the cutoff date shall not be more than two Business Days prior to such Option Closing Date; and
(vi) such further information, certificates and documents as the Representative may reasonably request with respect to the verification issuance of the foregoing certificatesuch Option Securities. 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 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 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 RepresentativesRepresentative. 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 & Underwriter Counsel, at 3 World Trade Center, ▇▇▇ ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ , ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, Certificates shall be subject to (a) 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 settlement date pursuant to Section 3 hereofDate, to (b) the accuracy of the statements of the Company made in any certificates delivered pursuant to the provisions hereof, to (c) the performance by the Company of its obligations hereunder and to (d) the satisfaction of the following additional conditions:
(a) The If the filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP[counsel], counsel for to the Company, to have furnished to the Representatives its opinions and negative assurance letterRepresentative an opinion of the Company, each dated the Closing Date and addressed to the RepresentativesRepresentative, to the effect that:
(i) the Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware and has the power and authority to own its properties and to conduct its business as described in the Final Prospectus, and the Company is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction in which such qualification is required, except where the failure so to qualify or to be in good standing would not result in a form reasonably acceptable Material Adverse Effect;
(ii) there is no pending or threatened action, suit or proceeding by or before any Governmental Authority involving the Company or its property, which is required to be disclosed in the Registration Statement and which is not adequately disclosed in the Final Prospectus, and any description of the litigation and other proceedings included or incorporated by reference in the Registration Statement or Final Prospectus presents a fair and accurate summary of those matters;
(iii) no consent, approval, authorization, filing with, or order of, any Governmental Authority is required in connection with the transactions contemplated herein, except as have been obtained under the Act and as may be required under the state securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Certificates by the Underwriters (about which such counsel need express no opinion) in the manner contemplated in this Agreement and in the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(iv) none of the execution and delivery of this Agreement, the Trust Agreement or the Certificates, the issue and sale of the Certificates, or the consummation of any of the other transactions herein or therein contemplated or the fulfillment of the terms hereof or thereof, will conflict with, result in a breach or violation of, or constitute a default under (i) the Organizational Documents of the Company, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company is a party or is bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order, decree of any Governmental Authority applicable to the RepresentativesCompany or any other authority having jurisdiction over the Company or any of its properties; which, with respect to (ii) and (iii), such conflict, breach, violation or default is reasonably likely to have a Material Adverse Effect;
(v) to the knowledge of such counsel, there are no legal or governmental proceedings pending to which the Company is a party or to which any property of the Company is subject that are required to be disclosed in the Prospectus pursuant to Item 103 of Regulation S-K of the Rules and Regulations that are not so disclosed;
(vi) except as set forth in the Final Prospectus, the Company possesses and is in compliance with all approvals, certificates, authorizations, licenses and permits issued by any state, federal or foreign regulatory agencies or bodies as is necessary to conduct its business as described in the Final Prospectus, except where the failure to possess and be in compliance with such approvals, certificates, authorizations, licenses and permits would not be reasonably likely to result in a Material Adverse Effect, and the Company has not received any notice of proceedings relating to the revocation or modification of any such approval, certificate, authorization, license or permit which, individually or in the aggregate, if it became the subject of an unfavorable decision, ruling or finding, would be reasonably likely to result in a Material Adverse Effect;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) the Trust Agreement has been duly authorized, executed and delivered by the Company (and the Trust Agreement has been qualified under the Trust Indenture Act) and, assuming due authorization, execution and delivery of the Trust Agreement by the Trustee, the Trust Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law); and
(ix) the Certificates have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Trust Agreement and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company and the holder thereof shall be entitled to the benefits of the Trust Agreement enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law).
(c) The Company shall have requested and caused Skadden, Arps, Slate, Meagher & Flom LLP, in its capacity as Special Counsel to the Compa▇▇, ▇▇ hav▇ ▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished rnished to the Representatives its opinions Representative their opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, to the effect that:
(i) each of the Transaction Documents is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms;
(ii) the Registration Statement has become effective under the Act; any required filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) have been made in the manner and within the time periods required by Rule 424(b); and to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened;
(iii) The statements in the Final Prospectus under the caption "Underwriting", insofar as such statements purport to summarize certain provisions of the Underwriting Agreement, fairly summarize such provisions in all material respects;
(iv) The statements in the Final Prospectus under the captions "Description of Certificates" and "Description of the Trust Agreement", insofar as such statements purport to summarize certain provisions of the documents referred to therein, fairly summarize such provisions in all material respects;
(v) The Company is not, and upon application of the proceeds as described under the caption "Use of Proceeds" in the Final Prospectus will not be, an "investment company," as such term is defined in the Investment Company Act of 1940, as amended;
(vi) Each of the Incorporated Documents, when it was filed, appeared on its face to be appropriately responsive in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, except that we do not express any opinion as to the financial statements and related notes and schedules and other financial data included therein or omitted therefrom or the exhibits thereto; and
(vii) The Registration Statement, at the time it became effective, and the Final Prospectus, as of its date, appeared on their face to be appropriately responsive in all material respects to the requirements of the Act, except that in each case we do not express any opinion as to the financial statements and schedules and other financial data included or incorporated by reference therein or excluded therefrom, or the exhibits thereto, and, except to the extent expressly stated in paragraphs (iv) and (v), we do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Final Prospectus. Furthermore, following the opinion paragraphs, Special Counsel to the Company shall state the following: "In addition, we have participated in conferences with managers and other representatives of the Company, counsel for the Company, representatives of the independent accountants of the Company and you and your counsel at which the contents of the Registration Statement and the Final Prospectus and related matters were discussed. We did not participate in the preparation of the Incorporated Documents but have, however, reviewed such documents and discussed the business and affairs of the Company with officers and other representatives of the Company. Although we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Final Prospectus and have made no independent check or verification thereof (other than in (iv) and (v) above), on the basis of the foregoing, no facts have come to our attention that have led us to believe that the Registration Statement, at the time it became effective and as of the date hereof, 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 that the Final Prospectus, as of its date and as of 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 a form reasonably acceptable light of the circumstances under which they were made, not misleading, except that we express no opinion or belief with respect to the Representativesfinancial statements and schedules and other financial data included or incorporated by reference therein or excluded therefrom or the exhibits to the Registration Statement, including the Form T-1."
(d) The Representatives Company shall have requested and caused Skadden, Arps, Slate, Meagher & Flom LLP, in its capacity as Special Tax Counsel to the C▇▇▇▇▇▇, to ▇▇▇e furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative that the statements set forth in the Final Prospectus under the caption "Certain Federal Income Tax Considerations" insofar as they purport to constitute summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters discussed therein in all material respects.
(e) The Representative shall have received from Ropes Skadden, Arps, Slate, Meagher & ▇▇▇▇ Flom LLP, counsel for the Underwriters, such opinion or opinions and negative assurance lettero▇▇▇▇▇▇▇, each dated d▇▇▇▇ the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the SecuritiesCertificates, the Trust Agreement, the Registration Statement, the Statutory Prospectus, the 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 request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by its sole member or the Chief Financial Officer President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Final Prospectus, any supplements to the Final 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 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 's knowledge, threatened; and
(iii) since the date of the most recent financial statements information included or incorporated by reference in the Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), ; there has been no Material Adverse Effectmaterial change in the condition (financial or otherwise), earnings, business, properties or prospects of the Company, 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 Final Prospectus (exclusive of any supplement thereto).
(fg) The Company shall have requested and caused Withum [name of auditors] to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, a letter in form and substance satisfactory to the RepresentativesRepresentative and counsel for the Underwriters, confirming that they are a registered nationally recognized independent public accounting firm that is independent with respect to the Company accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and stating in effect that they have performed a review of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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 Statement and the Prospectus, including the information set forth under the captions “Dilution” Final Prospectus (and “Capitalization” in the Statutory Prospectus and the Prospectusany supplements thereto), agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 in the items specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business, properties or prospects of the CompanyCompany 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 Final 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 reasonable judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Certificates as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any supplement thereto).
(hi) Prior Subsequent to the Closing DateExecution Time, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 there shall not have been fulfilled when and as provided any decrease in this Agreement, or if the rating of any of [the opinions and certificates mentioned above Company's debt securities] by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) 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 any notice given of the Underwriters hereunder may be canceled at, any intended 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.potential decrease i
Appears in 1 contract
Sources: Underwriting Agreement (Bond Products Depositor LLC)
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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇Ve▇▇▇▇▇ & ▇▇▇▇▇ LLPLP, 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(dc) The Representatives shall have received from Ropes & Ellenoff Gr▇▇▇▇▇▇ & Schole LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusGeneral 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 request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum RSM 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 it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2June 29, 2020 2017 (date of inception) through September 3December 31, 20202017, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 General 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeThe Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreements, the Subscription Agreements, the Forfeiture Agreements, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Support Agreement.
(lk) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 & Ellenoff Gr▇▇▇▇▇▇ & Schole LLP, counsel for the Underwriters, at ▇▇13▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: St▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (LF 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 and the Operating Partnership contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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)(5) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇, LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance lettertheir opinion, each dated the Closing Date and addressed to the Representatives, substantially in a the form reasonably acceptable to the Representatives.attached hereto as Exhibit A.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇ LLP, counsel for the Company with respect to the laws of the State of Maryland, to have furnished to the Representatives their opinion, dated the Closing Date and Calderaddressed to the Representatives, Cayman Islands counsel substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Senior Vice President of and General Counsel for the Company, to have furnished to the Representatives its opinions his opinion, dated the Closing Date and addressed to the Representatives, substantially in a the form reasonably acceptable to the Representatives.attached hereto as Exhibit C.
(de) The Representatives shall have received from Ropes & ▇▇▇▇▇ LLP▇▇▇▇▇ LLP (“▇▇▇▇▇ ▇▇▇▇▇”), counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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. In rendering such opinion, ▇▇▇▇▇ ▇▇▇▇▇ may rely on, to the extent it deems proper, (i) the opinion of Maryland counsel for the Company as to matters involving the application of the laws of the State of Maryland and (ii) on certificates of responsible officers of the Company and public officials as to matters of fact.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer Chairman of the CompanyBoard or the President and the principal financial or accounting officer of the Company in their capacities as such, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary Prospectus, Disclosure Package and 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 and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Disclosure Package, Prospectus, Registration Statement or any notice objecting to its their use has been issued issued, and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) except as set forth or contemplated in the Disclosure Package, Prospectus and Registration Statement (exclusive of any supplement thereto), since the date of the most recent financial statements included or incorporated by reference in the Statutory Disclosure Package in the Disclosure Package, Prospectus and the Prospectus Registration Statement (exclusive of any supplement thereto), (A) there has been no Material Adverse Effectmaterial 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, (B) there have been no transactions entered into by the Company and its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries, taken as a whole, (C) none of the Company or its subsidiaries and none of the Properties has sustained any loss or interference from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, except as set forth in or contemplated would not have a Material Adverse Effect and (D) there has not been any change in the Statutory Prospectus capital stock or long-term debt of any of the Company or its subsidiaries and there has been no dividend or distribution of any kind declared, paid or made by any of the Company, the Operating Partnership or any of their respective subsidiaries on any class of their capital stock or other ownership interests.
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Disclosure Package and the Prospectus and certifying as to the accuracy of certain operating data and or financial data in the Disclosure Package and the Prospectus, including the statements and documents included or incorporated by reference in the Disclosure Package and the Prospectus that are not comforted by KPMG in its letter referred to in paragraph (exclusive h) of any supplement thereto)this Section 6.
(fh) The Company shall have requested and caused Withum KPMG to have furnished to the Representatives, (i) at the Execution Time and at Time, a letter dated the Closing Date, letters, dated respectively as of date hereof addressed to the Execution Time and as of the Closing DateUnderwriters, in form and substance satisfactory to the Representatives, confirming and (ii) on the Closing Date, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they are a registered public accounting firm reaffirm the statements made in the letter furnished by them pursuant the preceding clause (i), except that is independent with respect the specified date referred 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 September 3, 2020 and therein for the period from September 2, 2020 (date carryout of inception) through September 3, 2020, provided that the cutoff date procedures shall not be no more than two three business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:.
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package and Prospectus (exclusive of any amendment or supplement thereto) and the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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 CompanyCompany 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 Disclosure Package, Prospectus and the Prospectus Registration Statement (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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) and the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hj) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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.
(jk) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the New York Stock ExchangeNYSE, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof The Articles Supplementary shall have been issued as of accepted for record by the Closing Date, MSDAT and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before be effective under the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificateMaryland REIT Law. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 to the office offices of Ropes ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the UnderwritersCompany, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Underwritten Securities and the Option Securities, as the case may be, shall Offered Notes will be subject to the accuracy of the representations and warranties on the part of the Company contained Bank and the Depositor herein on the date hereof and as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of officers of the Company Bank and the Depositor made in any certificates pursuant to the provisions hereof, to the performance by each of the Company Bank and the Depositor of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof, a nationally recognized independent public accounting firm shall have furnished to the Representative a letter (a “Procedures Letter”), dated the date of this Agreement verifying the accuracy of such financial and statistical data contained in the Preliminary Prospectus and the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have also received a letter dated the Closing Date confirming the Procedures Letter and providing additional comfort on such new data.
(b) The Prospectus, Prospectus and any supplement thereto, amendments and supplements thereto shall have been filed in the manner and within the time period required by Rule 424(b)) of the Rules and Regulations; the Depositor shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; and prior to the Closing Date, 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.
(bc) The Company Representative shall have requested received opinions, dated the Closing Date and caused reasonably satisfactory, when taken together, in form and substance to the Representative, of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Bank and the Depositor, and [▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.], special counsel to the Issuer, and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters as are customary for the type of transaction contemplated by this Agreement. Such opinions may contain such assumptions, qualifications and limitations as are usual and customary in opinions of this type.
(d) The Representative shall have received an opinion or opinions of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel for the Company, to have furnished to the Representatives its opinions Bank and negative assurance letterthe Depositor, each dated the Closing Date and addressed reasonably satisfactory in form and substance to the RepresentativesRepresentative, in a form reasonably acceptable with respect to (i) certain matters relating to the Representativestreatment by the Federal Deposit Insurance Corporation of the transfer of the Receivables from the Bank to the Depositor, (ii) a grant of a security interest in the Receivables to the Indenture Trustee and (iii) the perfection of the Indenture Trustee’s security interest in the Receivables. Such opinion or opinions may contain such assumptions, qualifications and limitations as are usual and customary in opinions of this type.
(ce) 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 addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives Representative shall have received from Ropes & ▇▇▇▇ LLP[ ], counsel for to the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed satisfactory in form and substance to the RepresentativesRepresentative, with respect to the issuance and sale validity of the SecuritiesOffered Notes, 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 Depositor shall have furnished or caused to be furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. Such opinion or opinions may contain such assumptions, qualifications and limitations as are usual and customary in opinions of this type.
(ef) The Company Representative shall have furnished received an opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special tax counsel to the Representatives Bank and the Depositor, dated the Closing Date and reasonably satisfactory in form and to the effect (a) that under current United States federal income tax law the Offered Notes (other than any Offered Notes, if any, retained by the Issuer or a certificate person considered to be the same person as the Issuer for United States federal income tax purposes) will be characterized as indebtedness, the Issuer will not be classified as an association taxable as a corporation, the Issuer will not be treated as a publicly traded partnership taxable as a corporation for United States federal income tax purposes and (b) that the statements made in the Preliminary Prospectus and the Prospectus under the caption “Material Federal Income Tax Consequences,” subject to the qualifications set forth in the Preliminary Prospectus and the Prospectus and insofar as they purport to constitute summaries of matters of United States federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the CompanyUnited States federal income tax matters described therein. Such opinion may contain such assumptions, signed qualifications and limitations as are usual and customary in opinions of this type.
(g) The Representative shall have received an opinion of [▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.], special counsel to the Owner Trustee, and such other counsel reasonably satisfactory to the Representative and its counsel, dated the Closing Date and satisfactory in form and substance to the Representative, with respect to such matters as are customary for the type of transaction contemplated by this Agreement. Such opinion may contain such assumptions, qualifications and limitations as are usual and customary in opinions of this type.
(h) If the Chief Financial Officer applicable Ratings Issuer Free Writing Prospectus sets forth any requirements as to the ratings of the CompanyOffered Notes, the Representative shall have received evidence satisfactory to it that such requirements have been met.
(i) The Representative shall have received certificates, dated the Closing Date, of an attorney-in-fact, a Vice President or more senior officer of the Bank and the Depositor in which such person, to the effect best of his or her knowledge after reasonable investigation, shall state that the signer of such certificate 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 Bank and the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with Date, (ii) the same effect as if made on the Closing Date Bank and the Company has Depositor have 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;
, (iiiii) the representations and warranties of the Bank, as Servicer, in the Servicing Agreement and the Depositor, in the Sale Agreement and/or Trust Agreement, are true and correct as of the dates specified in the applicable agreement, (iv) 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 oror are threatened by the Commission, (v) subsequent to the Company’s knowledge, threatened; and
(iii) since the date Time of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Sale, there has been no Material Adverse Effect, material adverse change in the financial position or results of operation of the Bank’s automotive finance business except as set forth in or contemplated in by the Statutory Prospectus Time of Sale Information and the Prospectus or as described in such certificate and (exclusive vi) the Prospectus does not contain any untrue statement of any supplement thereto)a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(fj) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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).
(h) Prior to On the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which Certificates shall have been provided issued to or at the direction of the Depositor pursuant to the RepresentativesTrust Agreement.
(k) On or prior to the Closing Date, the Company Offered Notes shall have been duly executed by the Owner Trustee on behalf of the Issuer, duly authenticated by the Indenture Trustee and delivered to or at the Representatives executed copies direction of the Trust Agreement, Bank pursuant to 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 AgreementIndenture.
(l) At least one Business Day prior to The Depositor will furnish the Closing DateRepresentative, or cause the Sponsor shall have caused the purchase price for the Private Placement Warrants Representative to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Datefurnished, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification number of the foregoing certificate. If any conformed copies of the conditions specified such opinions, certificates, letters and documents referenced in this Section 6 shall not have been fulfilled when and 7 as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be Representative 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 Daterequests.
Appears in 1 contract
Sources: Underwriting Agreement (Chase Auto Receivables LLC)
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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ 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 as of September 3included in the Registration Statement, 2020 the Statutory Prospectus and for the period from September 2, 2020 (date of inception) through September 3, 2020Prospectus, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the 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 Shareholder Stockholder Rights Agreement and the Administrative Services Support Agreement.
(k) [Reserved].
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $10,400,000 of the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount and the remaining $3,000,000 to be paid to the Company.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 & ▇▇▇▇ Proskauer Rose LLP, counsel for the Underwriters, at ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Adviser and the Administrator contained herein as of the Execution Time, the Closing Date and any settlement date for the Option Securities pursuant to Section 3 hereof, to the accuracy of the statements of the Company Company, the Adviser and the Administrator made in any certificates pursuant to the provisions hereof, to the performance by the Company Company, the Adviser or the Administrator of its their obligations hereunder and to the following additional conditions:
(a) The Prospectus, Final 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 54(c) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Final Prospectus or otherwise) shall have been complied with in all material respects.
(b) The Company Company, the Adviser and the Administrator shall have requested and caused ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, the Adviser and the Administrator to have furnished to the Representatives its opinions and negative assurance letteropinion, each dated the Closing Date and addressed to the Representatives, Representatives in a substantially the form reasonably acceptable to the Representatives.attached hereto as Exhibit A.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇ and CalderLLP, Cayman Islands special Maryland counsel for to the Company, to have furnished to the Representatives its opinions opinion as to certain matters pertaining to Maryland law, dated the Closing Date and addressed to the Representatives, Representatives in a substantially the form reasonably acceptable to the Representatives.attached hereto as Exhibit B.
(d) The Representatives shall have received from Ropes & ▇▇▇▇ LLP[ ], counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Company, the Adviser and the Administrator shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company Each of the Company, the Adviser and the Administrator shall have furnished to the Representatives a certificate certificate, signed by the principal executive officer and the principal financial or accounting officer of each of the Company, signed by the Chief Financial Officer of Adviser and the CompanyAdministrator, as the case may be, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus, any amendment amendments or supplement thereto, supplements thereto and this Agreement and that:
(i) the The representations and warranties of the Company Company, the Adviser or the Administrator, 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 Company, the Adviser or the Administrator, 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; and the statements made in the Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus (and any supplement thereto) under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Recent Developments” are true and correct as of 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’s, the Adviser’s or the Administrator’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 Final Prospectus (exclusive of any supplement thereto) (with respect to the certificate of the Company) and since the date of the Final Prospectus (exclusive of any supplements thereto) (with respect to the certificates of the Adviser and the Administrator), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Adviser or the Administrator, 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 Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused Withum KPMG LLP to have furnished to the Representatives, at the Execution Time and at Time, the Closing Date, Date and any settlement date letters, dated respectively as of the Execution Time and as of Time, the Closing DateDate and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that it is an independent with respect to the Company accountant within the meaning of the Act and the Exchange 1940 Act and the applicable rules Rules and regulations adopted by the Commission thereunder Regulations and that they have it has audited the consolidated statement of assets and liabilities, including the consolidated schedule of investments of the Company as of December 31, 2011 and the related consolidated statement of operations, changes in net assets and cash flows for the period ended December 31, 2011 and performed a review of the audited unaudited interim financial statements information of the Company as of September 3, 2020 and for the three-month period from September 2ended [ ], 2020 (date of inception) through September 32012 and as at [ ], 20202012, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(iiv) in their its opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus and reported on by them it comply as to form in all material respects with the applicable accounting requirements of the Act, the 1940 Act and the Rules and Regulations; and
(v) on the basis of a reading of the latest unaudited financial statements made available by the Company; its limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the three-month period ended [ ], 2012 and as at [ ], 2012; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to December 31, 2011, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and the 1940 Act and with the related rules and regulations adopted by the CommissionCommission with respect to registration statements on Form N-2; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus; and
(ii2) they have with respect to the period subsequent to [ ], 2012, there were any changes, at a specified date not more than three business days prior to the date of the letter, in the long-term debt of the Company or capital stock of the Company or decreases in the net assets or stockholders’ equity of the Company as compared with the amounts shown on the [ ], 2012 unaudited statement of assets and liabilities included in the Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus, or for the period from [ ], 2012 to such specified date there were any decreases, as compared with [ ], 2012 in net revenues or income before income taxes or in total or per share amounts of net income of the Company, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives.
(vi) it has performed certain other specified procedures as a result of which they it 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 Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus, including the information set forth under the captions “DilutionFees and Expenses” and “CapitalizationSelected Financial and Other Data” in the Statutory Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (fh) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any post-effective 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 (fh) 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, the Adviser and the Administrator, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Basic Prospectus, the Preliminary Final Prospectus and the Final 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 post-effective amendment thereof), the Statutory Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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
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, Initial Sale Time and as of the Closing Date (including, for the avoidance of doubt, compliance with covenants and any settlement date pursuant conditions in the indentures of the Company relating to Section 3 hereofthe creation, assumption or incurrence of funded indebtedness), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofof this Section 5, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, (i) Each Preliminary Final Prospectus that supplements the Basic Prospectus and any supplement thereto, the Canadian Final Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures and (ii) each Preliminary Final Prospectus that supplements the U.S. Basic Prospectus and the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.L. of Form F-10 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, U.S. counsel for the Company, to have furnished to the Representatives its opinions and negative assurance lettertheir 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 Company shall have requested and caused Blake, ▇▇▇▇▇▇▇ and Calder& ▇▇▇▇▇▇▇ LLP, Cayman Islands Canadian counsel for the Company, to shall have furnished to the Representatives its opinions their opinion, dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable with respect to the Representatives.laws of the Province of Alberta and the federal laws of Canada applicable therein, to the effect set forth in Annex IIa and Annex IIb;
(d) The Representatives shall have received from Ropes ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture (if applicable), the Registration Statement, the Statutory ProspectusDisclosure Package, the U.S. 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.;
(e) The Representatives 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 a certificate of the Company, signed by the Chief Financial Officer Vice-President, Finance and the Senior Vice-President, Capital Markets of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the signers of such certificate have carefully examined the Registration Statement, the Canadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus, any supplements to the Canadian Final Prospectus, the Disclosure Package and the U.S. Final Prospectus and this Agreement;
(ii) 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 orbeen, to the Company’s knowledge, threatened; andinstituted or threatened by the Reviewing Authority or the Commission;
(iiiiv) 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 Initial Sale Time, and the Prospectus (exclusive of any supplement thereto)Disclosure Package, there has been no Material Adverse Effectmaterial 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 Canadian Final Prospectus, as amended or supplemented prior to the Initial Sale Time, and the Prospectus (exclusive of any supplement thereto).Disclosure Package; and
(fv) The the Company shall have requested is in compliance with the covenants and caused Withum to have furnished conditions in the indentures of the Company relating to the Representativescreation, at assumption or incurrence of funded indebtedness;
(g) At the Execution Initial Sale Time and at the Closing Date, letters, the Representatives shall have received from KPMG LLP a letter or letters dated respectively as of the Execution Time and as of the Closing Datesuch date or dates, in form and substance 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 as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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, the Disclosure Package, any Issuer Free Writing 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 (f) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Initial Sale 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 Initial Sale Time, the Statutory Canadian Final Prospectus and as amended or supplemented prior to the Prospectus (exclusive of Initial Sale Time, the Disclosure Package 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 (fg) 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 CompanyCompany 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 Initial Sale Time, and the Prospectus (exclusive of any supplement thereto) Disclosure Package 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 Statement, the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and any Issuer Free Writing Prospectus;
(exclusive i) Subsequent to the Initial Sale Time, there shall not have been any decrease in the rating of any amendment thereof)of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change;
(j) If the Registration Statement or an offering of Securities has been filed with the FINRA for review, the Statutory Prospectus FINRA shall not have raised any objection with respect to the fairness and reasonableness of the Prospectus (exclusive of any supplement thereto).underwriting terms and arrangements; and
(hk) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be 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 5 shall be delivered at the office of Ropes & ▇the Company, Attention: Corporate Secretary, ▇▇▇ LLP, counsel for the Underwriters, at ▇— ▇▇▇ ▇▇▇▇▇▇ ▇▇ .▇., ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing DateDate or such other place as the Company and the Representatives shall so agree.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested furnished to the Representatives the opinion, dated the Closing Date, in the form and caused ▇substance as set forth in Exhibit A-1 hereto, and the letter, dated the Closing Date, in the form and substance as set forth in Exhibit A-2 hereto, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 or such other counsel reasonably acceptable to the Representatives.
(c) The Company Representatives shall have requested and caused received from ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & ▇▇▇▇ Bird LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Statutory ProspectusDisclosure 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 may reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Prospectus and any amendment or supplement theretoFinal Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the 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;
(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’s knowledge, threatened; and
(iii) since 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 Effectmaterial adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, 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).
(fe) The Company At the Execution Time and the Closing Date, Ernst & Young LLP shall have requested and caused Withum to have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of 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 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 rules and regulations adopted by the Commission thereunder and covering matters that they have performed a review of are ordinarily covered by “comfort letters” to underwriters with respect to the audited financial statements of the Company as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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 Final Prospectus; provided, however, that the letter furnished on and reported on by them comply dated as to form in all material respects with the applicable accounting requirements of the Act and Closing Date shall use a “cut-off” date no more than three business days prior to 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 interpretationClosing Date. References to the Final Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or decrease incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (fe) of this Section 6 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 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) other), 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 Company and the Prospectus (exclusive of any supplement thereto) its subsidiaries the effect of which, 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 the 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 supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA The Representatives shall not have raised any objection received from counsel, satisfactory to the Representatives, such opinion or opinions, dated the Closing Date, with respect to compliance with the fairness or reasonableness laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the underwriting or Securities, the Prospectus and other arrangements related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of the transactions contemplated herebyenabling them to pass upon such matters.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided If indicated in Schedule I hereto as being applicable to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies offering of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this AgreementSecurities, the Representatives shall have received a certificate satisfying an opinion from tax counsel for the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably Company, satisfactory to the RepresentativesRepresentatives and dated the Closing Date, along with such additional supporting documentation confirming their opinion as to United States tax matters set forth in the Representatives have requested in connection with the verification of the foregoing certificateFinal Prospectus. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwritersits counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the 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
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 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 ▇Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letterRepresentative their opinion, each dated the Closing Date and addressed to the Representatives, Representative in a the form reasonably acceptable to the Representativesattached as Exhibit A hereto.
(c) The Company Representative shall have requested and caused received from ▇▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum KPMG to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 unaudited interim financial statements information of the Company as of September 3___, 2020 2010 and for the period from September 2___, 2020 2010 (date of inception) through September 3to ___, 20202010, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; if any; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information as of ___, 2010 and for the period ___, 2010 (inception) to ___, 2010; carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings, if any, of the stockholders, directors and audit, governance and nominating committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to ___, 2010, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and
(ii2) with respect to the period subsequent to ___, 2010, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the ___, 2010 balance sheet included in the Registration Statement, the Statutory Prospectus and the Prospectus, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance have been authorized for quotation on the New York Stock ExchangeOTC Bulletin Board, and satisfactory evidence of which such actions shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Services Agreement and each of the Insider LetterLetters.
(k) On or before the Effective Date, the Registration and Shareholder Rights Agreement and Representative shall have received the Administrative Services AgreementSecondary Market Trading Survey from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(gg) 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 (Hicks Acquisition CO II, 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and CalderCalder (Dubai) LLP, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Ropes & Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusGeneral 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.
(e) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused Withum BDO to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review (i) an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2May 24, 2020 2021 (date of inception) through September 3July 31, 20202021, 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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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
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 settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested furnished to the Representatives the opinion, dated the Closing Date, in the form and caused ▇substance as set forth in Exhibit A-1 hereto, and the letter, dated the Closing Date, in the form and substance as set forth in Exhibit A-2 hereto, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 or such other counsel reasonably acceptable to the Representatives.
(c) The Company Representatives shall have requested and caused received from ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & ▇▇▇▇ Bird LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Statutory ProspectusDisclosure 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 may reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Prospectus and any amendment or supplement theretoFinal Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the 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;
(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’s knowledge, threatened; and
(iii) since 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 Effectmaterial adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, 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).
(fe) The Company At the Execution Time and the Closing Date, Ernst & Young LLP shall have requested and caused Withum to have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of 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 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 rules and regulations adopted by the Commission thereunder and covering matters that they have performed a review of are ordinarily covered by “comfort letters” to underwriters with respect to the audited financial statements of the Company as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 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 Final Prospectus; provided, however, that the letter furnished on and reported on by them comply dated as to form in all material respects with the applicable accounting requirements of the Act and Closing Date shall use a “cut-off” date no more than four business days prior to 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 interpretationClosing Date. References to the Final Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or decrease incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (fe) of this Section 6 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 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) other), 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 Company and the Prospectus (exclusive of any supplement thereto) its subsidiaries the effect of which, 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 the 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 supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA The Representatives shall not have raised any objection received from counsel, satisfactory to the Representatives, such opinion or opinions, dated the Closing Date, with respect to compliance with the fairness or reasonableness laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the underwriting or Securities, the Prospectus and other arrangements related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of the transactions contemplated herebyenabling them to pass upon such matters.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided If indicated in Schedule I hereto as being applicable to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies offering of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this AgreementSecurities, the Representatives shall have received a certificate satisfying an opinion from tax counsel for the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably Company, satisfactory to the RepresentativesRepresentatives and dated the Closing Date, along with such additional supporting documentation confirming their opinion as to United States tax matters set forth in the Representatives have requested in connection with the verification of the foregoing certificateFinal Prospectus. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwritersits counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the 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
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 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 Representatives shall have requested received the opinion and caused letter, dated as of the Closing Date or settlement date, as applicable, and addressed to the Representatives of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to in 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 Representativesof Schedule IV hereto.
(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 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signer signers of such certificate has 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 DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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).
(fe) The Company shall have requested and caused Withum BDO to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or 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 as of September 3, 2020 and for the period from September 2February 9, 2020 2021 (date of inception) through September 3February 16, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing DateDate 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 described 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 by 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).
(hg) Prior to the Closing DateDate 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(ki) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider LetterForward Purchase Agreement, the Registration and Shareholder Rights Agreement Insider Letter and the Administrative Services Registration Rights Agreement.
(lj) At least one Business Day prior to the Closing DateDate 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.
(mk) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Sources: Underwriting Agreement (Thimble Point Acquisition Corp. II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Underwritten Offered 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 Offerors contained herein as of the Execution Time, date hereof and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company Offerors made in any certificates pursuant to the provisions hereof, to the performance by the Company Offerors of its their 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 No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued be in effect and no proceedings for that purpose shall have been instituted then be pending before, or threatenedthreatened by, the Commission.
(b) The Company Offerors shall have requested and caused furnished to the Representative the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ 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 RepresentativesRepresentative, in a form reasonably acceptable and substance satisfactory to the RepresentativesRepresentative and its counsel.
(c) The Company Offerors shall have requested and caused furnished to the Representative the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and Calder& Finger, Cayman Islands special counsel for the Company, to have furnished to the Representatives its opinions Offerors, dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable and substance satisfactory to the RepresentativesRepresentative and its counsel.
(d) The Representatives Offerors shall have furnished to the Representative the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to Wilmington Trust Company, as Property Trustee under the Declaration, Debenture Trustee under the Indenture and Guarantee Trustee under the Preferred Securities Guarantee, dated the Closing Date and addressed to the Representative, in form and substance satisfactory to the Representative and its counsel.
(e) The Representative shall have received from Ropes Winston & ▇▇▇▇ LLP▇▇▇, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, each dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance incorporation and sale legal existence of the Company; the Preferred Securities, the Registration StatementDeclaration, the Statutory ProspectusIndenture, the Preferred Securities Guarantee, this Agreement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company Offerors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Officer Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Representative a certificate of the Trust, signed by an Administrative Trustee of the Trust, each dated the Closing Date, to the effect that the signer of each such certificate has 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 and the Trust, respectively, 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 and the Trust, respectively, have complied with all the agreements and satisfied all the conditions on its part their respective parts 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 amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, or the Trust, respectively, 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); and
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to his or her knowledge, threatened by the Commission.
(fg) The On the date hereof and on the Closing Date, the Company shall have requested and caused Withum PricewaterhouseCoopers LLP to have furnished furnish to the Representatives, at the Execution Time and at the Closing Date, Representative letters, dated respectively as of the Execution Time date hereof 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 as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letterRepresentative.
(gh) Subsequent to the Execution Time ordate of this Agreement, or if earlier, the respective 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)Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 5 or (ii) any change, or any development involving a prospective change, in or affecting the earningsfinancial condition, business, management, properties, assets, rights, operations, condition (financial business or otherwise) or prospects properties of the CompanyTrust or 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 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 RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the public 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 amendment or supplement thereto).
(hi) On the Closing Date, (i) the Preferred Securities shall be rated Baa2 by Moody’s, BBB by S&P and BBB by Fitch, and the Offerors shall have delivered to the Representative evidence satisfactory to the Representative confirming that the Preferred Securities have such ratings, and (ii) subsequent to the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Preferred Securities or any of the Company’s first mortgage bonds or commercial paper by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Preferred Securities or any of the Company’s other debt securities.
(j) 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.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and or 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 Underwritersits counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. 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 UnderwritersCompany, at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement
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 settlement date pursuant to Section 3 hereofOption 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 with the manner and Commission pursuant to Rule 424(b) under the Act within the applicable time period required prescribed for such filing by Rule 424(b)the rules and regulations under the Act; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Commission; no stop order suspending or preventing the use of the Statutory Prospectus or Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and CalderWalkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions written opinion, dated the Closing Date and addressed to the RepresentativesDate, 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, 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(f) The Company shall have requested and caused Withum ▇▇▇▇▇▇ 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 as of September 3, 2020 and for the period from September 2July 21, 2020 (date of inception) through September 3July 27, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Nasdaq Stock ExchangeMarket, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Founder’s Subscription Agreement, the Warrant Purchase Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company shall have delivered will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, Letters and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(n) On or before The several obligations of the date of this Agreement, Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives shall have received on the applicable Option Closing Date of the following:
(i) a certificate satisfying signed by the beneficial ownership due diligence requirements Chief Executive Officer and the principal financial or accounting officer of the Financial Crimes Enforcement Network Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(e) hereof remains true and correct as of such Option Closing Date;
(“FinCEN”ii) from opinions and negative assurance letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company 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) opinion of Walkers, Cayman Islands 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(c) hereof;
(iv) opinions and negative assurance letter of White & Case 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(d) hereof;
(v) a letter dated the Option Closing Date, in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation from ▇▇▇▇▇▇ substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(f) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(vi) such further information, certificates and documents as Representatives have requested in connection may reasonably request with respect to the verification issuance of the foregoing certificatesuch 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 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 required to be delivered by this Section 6 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.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(dc) The Representatives shall have received from Ropes & ▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusGeneral 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 request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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, or threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum 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 it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2November 20, 2020 (date of inception) through September 3December 10, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeThe Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Support Agreement.
(lk) At least one (1) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 Representatives shall have requested and caused ▇received from ▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President or Chief Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2January 27, 2020 2021 (date of inception) through September 3[•], 20202021, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Investment Management Trust Agreement, the Warrant Agreement, the Founder’s Securities Subscription Agreement, the Amendment No. 1 to the Securities Subscription Agreement, the Forward Purchase Agreement, the Warrant Subscription Private Placement Units Purchase Agreement, the Insider Letter, the Registration and Shareholder Investor Rights Agreement and the Administrative Services Agreement.
(lk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused certain proceeds from the purchase price for sale of the Private Placement Warrants Units to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date 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.
(ml) No order preventing or suspending the sale of the Units units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 electronic mail 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 1 contract
Sources: Underwriting Agreement (Post Holdings Partnering 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 P▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes M▇▇▇▇▇▇▇▇ Will & E▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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 ProspectusGeneral 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 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 General Disclosure Package 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused Withum M▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed a review an audit of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2June 21, 2020 2021 (date of inception) through September 3July 27, 20202021, 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 General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, 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 General 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 RepresentativesRepresentative, 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 General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeThe Nasdaq GlobalMarket, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Private Placement Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Support Agreement.
(lk) At least one (1) 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 M▇▇▇▇▇▇▇▇ Will & E▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇O▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: R▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Seaport Global Acquisition II 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 in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company and the Parent Guarantor contained herein as at the Applicable Time, to the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the Execution Time, representations and warranties of the Company and the Parent Guarantor contained herein at the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company or the Parent Guarantor 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 No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or any notice objecting pursuant to its use Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been issued timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act) and no proceedings in accordance with Section 5(a) hereof; and all requests by the Commission for that purpose additional information shall have been instituted or threatenedcomplied with to the reasonable satisfaction of the Representatives.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished furnish to the Representatives its opinions Underwriters an opinion letter and negative assurance an advice letter, each dated the Closing Date and addressed to substantially in the Representativesforms of Exhibit A and Exhibit B, respectively, hereto and an opinion of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, special regulatory counsel for the Company, dated the Closing Date and substantially in a the form reasonably acceptable to the Representatives.
(c) of Exhibit C hereto. The Company shall have requested and caused the general counsel of the Company to furnish to the Underwriters an opinion letter with regards to such matters as the Representatives shall reasonably require.
(c) The Underwriters shall have received from ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions letter and negative assurance advice letter, each dated the Closing Date and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the Securities, the Registration StatementIndenture, the Statutory Prospectus, Disclosure Package and the Prospectus (together with any supplement theretoas amended or supplemented at the Closing Date) and other related matters as the Representatives Underwriters may reasonably require, ; and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by (x) the Chief Financial Officer chairman, chief executive officer, president or vice president and (y) the chief financial officer, treasurer or principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary Disclosure Package and the Prospectus, the Prospectus and any amendment or supplement thereto, to the Disclosure Package or the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the Parent Guarantor in this Agreement are true and correct on in all material respects (except to the extent already qualified by materiality, in which case such representations and as of warranties are true and correct in all respects) at the Closing Date with the same effect as if made Applicable Time and on the Closing Date Date, and the Company has and the Parent Guarantor have 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
(iiiii) since the date of the most recent financial statements included or incorporated by reference in each of the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(fe) The Company shall have requested and caused Withum to have furnished to At the Representatives, at the Execution Applicable Time and at the Closing Date, lettersthe Company shall have requested and caused Ernst & Young LLP to furnish to the Underwriters a “comfort” letter, dated respectively as of the Execution Time Applicable Time, and a bring-down “comfort letter,” dated as of the Closing Date, respectively, in form and substance reasonably satisfactory to the Representatives, confirming that they are a independent registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Act and the Exchange Act and within the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review meaning of the audited financial statements rules of the Public Company as of September 3, 2020 Accounting Oversight Board and for the period from September 2, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior confirming certain matters with respect to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited and 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 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 (f) include any amendment or supplement thereto at the date of the applicable letter.
(gf) 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified development in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), business or prospects results of operations of the CompanyParent Guarantor and its subsidiaries, whether or not arising from transactions in taken as a whole, and after giving effect to the ordinary course of businessTransaction, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) ), the effect of whichwhich is, in any case referred or would reasonably be expected to in clause (i) or (ii) above, isbecome, in the sole judgment of the RepresentativesCitigroup, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or delivery of the Securities as on the terms and in the manner contemplated by in the Registration Statement (exclusive of any amendment thereof)Statement, the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(g) At the Closing Date, the Company, the Parent Guarantor and the Trustee shall have entered into the Indenture, and the Representatives shall have received counterparts, conformed as executed, thereof.
(h) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of the Securities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act, or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect , as set forth in the closing memorandum relating to the fairness or reasonableness offering of the underwriting or other arrangements of the transactions contemplated herebySecurities.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior Prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants taken all action reasonably required to be deposited into taken by it to have the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing DateSecurities declared eligible for clearance and settlement through DTC. All opinions, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreementletters, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions evidence and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory 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 will be delivered available for inspection at the office of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ & ▇▇▇▇▇▇▇▇ LLP, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Business Day prior to the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 Representatives shall have requested and caused ▇received from ▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President or Chief Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2January 27, 2020 2021 (date of inception) through September 3[•], 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Investment Management Trust Agreement, the Warrant Agreement, the Founder’s Securities Subscription Agreement, the Forward Purchase Agreement, the Warrant Subscription Private Placement Units Purchase Agreement, the Insider Letter, the Registration and Shareholder Investor Rights Agreement and the Administrative Services Agreement.
(lk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused certain proceeds from the purchase price for sale of the Private Placement Warrants Units to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date 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.
(ml) No order preventing or suspending the sale of the Units units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 electronic mail 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 1 contract
Sources: Underwriting Agreement (Post Holdings Partnering 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 211, 2020 (date of inception) through September 314, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Forward Purchase Agreements, the Private Placement CAPSTM Purchase Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $3,600,000 of the purchase price for the Private Placement Warrants CAPSTM to be deposited into the Trust AccountAccount and the remaining $2,000,000 to be paid to the Company.
(ml) No order preventing or suspending the sale of the Units CAPSTM in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 1 contract
Sources: Underwriting Agreement (Periphas Capital Partnering 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 settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2January 7, 2020 2021 (date of inception) through September 3March 29, 20202021, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Stockholder Rights Agreement and the Administrative Services Support Agreement.
(k) [Reserved].
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $7,000,000 of the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount and the remaining $3,000,000 to be paid to the Company.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 (Conyers Park III 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 in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company and the Parent Guarantor contained herein as at the Applicable Time, to the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the Execution Time, representations and warranties of the Company and the Parent Guarantor contained herein at the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company or the Parent Guarantor 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 No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or any notice objecting pursuant to its use Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been issued timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act) and no proceedings in accordance with Section 5(a) hereof; and all requests by the Commission for that purpose additional information shall have been instituted or threatenedcomplied with to the reasonable satisfaction of the Representatives.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished furnish to the Representatives its opinions Underwriters an opinion letter and negative assurance an advice letter, each dated the Closing Date and addressed to substantially in the Representativesforms of Exhibit A and Exhibit B, respectively, hereto and an opinion of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, special regulatory counsel for the Company, dated the Closing Date and substantially in a the form reasonably acceptable to the Representatives.
(c) of Exhibit C hereto. The Company shall have requested and caused the general counsel of the Company to furnish to the Underwriters an opinion letter with regards to such matters as the Representatives shall reasonably require.
(c) The Underwriters shall have received from ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions letter and negative assurance advice letter, each dated the Closing Date and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the Securities, the Registration StatementIndenture, the Statutory Prospectus, Disclosure Package and the Prospectus (together with any supplement theretoas amended or supplemented at the Closing Date) and other related matters as the Representatives Underwriters may reasonably require, ; and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by (x) the Chief Financial Officer chairman, chief executive officer, president or vice president and (y) the chief financial officer, treasurer or principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary Disclosure Package and the Prospectus, the Prospectus and any amendment or supplement thereto, to the Disclosure Package or the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the Parent Guarantor in this Agreement are true and correct on in all material respects (except to the extent already qualified by materiality, in which case such representations and as of warranties are true and correct in all respects) at the Closing Date with the same effect as if made Applicable Time and on the Closing Date Date, and the Company has and the Parent Guarantor have 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
(iiiii) since the date of the most recent financial statements included or incorporated by reference in each of the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(fe) The Company shall have requested and caused Withum to have furnished to At the Representatives, at the Execution Applicable Time and at the Closing Date, lettersthe Company shall have requested and caused Ernst & Young LLP to furnish to the Underwriters a “comfort” letter, dated respectively as of the Execution Time Applicable Time, and a bring-down “comfort letter,” dated as of the Closing Date, respectively, in form and substance reasonably satisfactory to the Representatives, confirming that they are a independent registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Act and the Exchange Act and within the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review meaning of the audited financial statements rules of the Public Company as of September 3, 2020 Accounting Oversight Board and for the period from September 2, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior confirming certain matters with respect to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited and 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 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 (f) include any amendment or supplement thereto at the date of the applicable letter.
(gf) 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified development in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), business or prospects results of operations of the CompanyParent Guarantor and its subsidiaries, whether or not arising from transactions in taken as a whole, and after giving effect to the ordinary course of businessTransaction, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) ), the effect of whichwhich is, in any case referred or would reasonably be expected to in clause (i) or (ii) above, isbecome, in the sole judgment of the RepresentativesBarclays, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or delivery of the Securities as on the terms and in the manner contemplated by in the Registration Statement (exclusive of any amendment thereof)Statement, the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(g) At the Closing Date, the Company, the Parent Guarantor and the Trustee shall have entered into the Indenture, and the Representatives shall have received counterparts, conformed as executed, thereof.
(h) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of the Securities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act, or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect , as set forth in the closing memorandum relating to the fairness or reasonableness offering of the underwriting or other arrangements of the transactions contemplated herebySecurities.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On or prior Prior to the Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants taken all action reasonably required to be deposited into taken by it to have the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing DateSecurities declared eligible for clearance and settlement through DTC. All opinions, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreementletters, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions evidence and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory 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 will be delivered available for inspection at the office of Ropes & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ & ▇▇▇▇▇▇▇▇ LLP, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Business Day prior to the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the Representatives, Representative in a form reasonably acceptable and substance satisfactory to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 224, 2020 2013 (date of inception) through September 3to October 11, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable2013, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Subscription Agreement, the Warrant Subscription Agreement, each of the Insider Letter, the Registration and Shareholder Rights Agreement Letters and the Administrative Services Agreement.
(lk) 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 wired to the Company and the Company shall direct the escrow agent to deposit such funds into the Trust AccountAccount and to hold such funds in escrow therein.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 (Hennessy 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 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 ▇Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letterRepresentative their opinion, each dated the Closing Date and addressed to the Representatives, Representative in a the form reasonably acceptable to the Representativesattached as Exhibit A hereto.
(c) The Company Representative shall have requested and caused received from ▇▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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 '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 Effectmaterial adverse effect on the financial condition, prospects, earnings, business or 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).
(fe) The Company shall have requested and caused Withum KPMG to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 unaudited interim financial statements information of the Company as of September 3June 30, 2020 2007 and for the period from September 2February 26, 2020 2007 (date of inception) through September 3to June 30, 20202007, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; if any; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information as of June 30, 2007 and for the period February 26, 2007 (inception) to June 30, 2007; carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings, if any, of the stockholders, directors and audit, governance and nominating committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to June 30, 2007, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus; and
(ii2) with respect to the period subsequent to June 30, 2007, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company or capital stock of the Company or decreases in the stockholders' equity of the Company as compared with the amounts shown on the June 30, 2007 balance sheet included in the Registration Statement, the Statutory Prospectus and the Prospectus, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “"Dilution” " and “"Capitalization” " in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed listed, subject to notice of issuance issuance, on the New York American Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s 's Units Purchase AgreementAgreements, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 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.
(n) On or before the date of this Co-Investment Subscription Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements Services Agreement and each of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificateInsider Letters. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 (Hicks Acquisition CO I 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 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 ▇▇▇L▇▇▇▇▇ & W▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(dc) The Representatives Representative shall have received from Ropes Weil, Gotshal & M▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has 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).
(fe) The Company shall have requested and caused Withum G▇▇▇▇ ▇▇▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 2October 22, 2020 2018 (date of inception) through September 3November 6, 20202018, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 RepresentativesRepresentative, 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On or prior to the Closing Datedate hereof, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, Letters and the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 & M▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇7▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇A▇▇▇ ▇. ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have requested and caused G▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Traurig, LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letterRepresentative their opinion, each dated the Closing Date and addressed to the RepresentativesRepresentative, in a the form reasonably acceptable to the Representatives.attached hereto as Exhibit A.
(c) The Company Representative shall have requested and caused received from C▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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, Preliminary Prospectus and 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and Prospectus, any amendment or supplement thereto, 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 Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or 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).
(fe) The Company shall have requested and caused Withum R▇▇▇▇▇▇▇▇ Kass to have furnished to the RepresentativesRepresentative, 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 RepresentativesRepresentative, 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 Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review not, during the periods covered by the financial statements included in the Registration Statement and Prospectus, provided to the Company any non-audit services, as such term is used in Section 10(A)(g) of the audited financial statements of the Company as of September 3, 2020 and for the period from September 2, 2020 (date of inception) through September 3, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicableExchange Act, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus Statement 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) on the basis of a limited review, which included a reading of the latest unaudited financial statements made available by the Company for the [•]-month period ended [•], 2006, and as at [•], 2006; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and various committees of the board of directors; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to [•], 2006, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to [•], 2006, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the [•], 2006 balance sheet included in the Registration Statement and the Prospectus, or for the period from inception to such specified date there were any decreases in net loss or loss before income taxes (benefit) or in total or per share amounts of net loss of the Company, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus Statement 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or 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 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 RepresentativesRepresentative, 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 Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) 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.
(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.
(jh) The Securities shall be Units, the Warrants and the Common Stock have been duly listed subject to notice of issuance listed, and admitted and authorized for trading, on the New York American Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the RepresentativesRepresentative.
(ki) On or prior to the Closing Effective Date, the Company Representative shall have delivered to received from the Representatives Company executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Founders’ Unit Subscription Agreement, the Insider LetterSponsors’ Warrant and Co-Investment Unit Subscription Agreement, the Registration and Shareholder Rights Services Agreement and the Administrative Services AgreementInsider Letters.
(lj) At least one Business Day prior the Execution Time, the Company shall have requested and caused each of the Founders to have executed and furnished to the Representative a certificate, dated the Closing DateDate and addressed to the Representative, to the Sponsor shall have caused effect that, except as described in the purchase price for Prospectus, there are no claims, payments, arrangements, contracts, agreements or understandings relating to the Private Placement Warrants payment of a brokerage commission or finder’s, consulting, origination or similar fee by such Founders with respect to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in Securities hereunder or any jurisdiction designated other arrangements, agreements or understandings of such Founders that may affect the Underwriters’ compensation, as determined by the Representatives pursuant to Section 5(iiNASD.
(k) hereof Each of the Founders shall have purchased the Founders’ Units and the Founders’ Warrants, and the proceeds of such purchases shall have been issued as of deposited in the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificateTrust Account. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 RepresentativesRepresentative. 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 C▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇O▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. -▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Freedom Acquisition Holdings, 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 settlement date pursuant to Section 3 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 & M▇▇▇▇▇ 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 ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(dc) The Representatives shall have received from Ropes D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:: BofA Securities, Inc. [Pricing Date]
(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).
(fe) The Company shall have requested and caused Withum 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 as of September 3, 2020 and for the period from September 2July 15, 2020 (date of inception) through September 3July 17, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the 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. BofA Securities, Inc. [Pricing Date] References to the Prospectus in this paragraph (f(e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f(e) 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).
(hg) 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Forward Purchase Agreement, the Insider LetterLetters, the Registration and Shareholder Stockholder Rights Agreement and the Administrative Services Agreement.
(lk) At least one Business Day prior to the Closing Date, the Sponsor Trasimene Capital FT, L▇ ▇▇ shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(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.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing 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 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 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.. BofA Securities, Inc. [Pricing Date]
Appears in 1 contract
Sources: Underwriting Agreement (Foley Trasimene Acquisition 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 settlement date pursuant to Section 3 hereofOption 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 or under Section 8A under the Securities Act shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLPL.L.P., counsel for the CompanyCompany (“US Counsel”), to have furnished to the Representatives Representative its opinions opinion and negative assurance letter, each dated the Closing Date or Option Closing Date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and CalderWalkers (Cayman) LLP, Cayman Islands counsel for the CompanyCompany (“Cayman Counsel”), to have furnished to the Representatives Representative its opinions opinion, dated as of the Closing Date or Option Closing Date, as applicable, and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Ropes & ▇▇▇▇ Gray LLP, counsel for the UnderwritersUnderwriters (“Underwriter Counsel”), such opinion or opinions and negative assurance letter, each dated the Closing Date or Option Closing Date, as applicable, 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.
(e) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or Option Closing Date, as applicable, to the effect that the signer signers of such certificate has 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 or Option Closing Date, as applicable, with the same effect as if made on the Closing Date or Option Closing 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 or Option Closing 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 or under Section 8A under the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included 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).
(f) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the RepresentativesRepresentative, at the Execution Time Time, at the Closing Date and at the any Option Closing Date, letters, dated respectively as of the Execution Time Time, as of the Closing Date and as of the Option Closing Date, as applicable, in form and substance satisfactory to the RepresentativesRepresentative, 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 September 3, 2020 and for the period from September 229, 2020 2025 (date of inception) through September 3October 16, 20202025, 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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f(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) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, 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).
(h) Prior to the Closing Date or Option Closing 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.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(k) On or prior to the Closing Datedate hereof, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Securities Agreements, the Unit Subscription Agreement, the Insider LetterTrust Agreement, the Warrant Agreements, the Registration and Shareholder Rights Agreement Agreement, the Insider Letter and the Administrative Services Support Agreement.
(l) At least one Business Day prior to the Closing Date, the Unit Holder Sponsor shall have caused the purchase price for the Private Placement Warrants Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(ll) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose or under Section 8A under the Securities Act shall have been instituted or shall have been threatened.
(n) On or before The several obligations of the date Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representative on the applicable Option Closing Date of this Agreement, the Representatives shall have received following:
(i) a certificate satisfying signed by the beneficial ownership due diligence requirements Chief Executive Officer and the principal financial or accounting officer of the Financial Crimes Enforcement Network Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(e) hereof remains true and correct as of such Option Closing Date;
(“FinCEN”ii) from an opinion and negative assurance letter of US Counsel for the Company 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) an opinion of Cayman Counsel, 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) an opinion and negative assurance letter of Underwriter Counsel, 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(d) hereof;
(v) a letter dated the Option Closing Date, in form and substance reasonably satisfactory to the RepresentativesRepresentative, along with such additional supporting documentation from ▇▇▇▇▇▇ substantially in the same form and substance as the Representatives have requested in connection letter furnished to the Underwriters pursuant to Section 6(f) hereof; provided that the cutoff date shall not be more than two Business Days prior to such Option Closing Date; and
(vi) such further information, certificates and documents as the Representative may reasonably request with respect to the verification issuance of the foregoing certificatesuch 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 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 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 RepresentativesRepresentative. 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 UnderwritersUnderwriter Counsel, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇ (▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇) and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇), unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Representatives shall have requested received the opinion and caused letter, dated as of the Closing Date or settlement date, as applicable, and addressed to the Representatives of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to in 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 Representativesof Schedule IV hereto.
(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 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 letteropinions, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate or settlement date (as applicable), to the effect that the signer signers of such certificate has 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 DateDate or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued 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).
(fe) The Company shall have requested and caused Withum ▇▇▇▇▇▇ to have furnished to the Representatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or 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 as of September 3, 2020 and for the period from September 2December 1, 2020 (date of inception) through September 3December 7, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing DateDate 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 described 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) 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 by 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).
(hg) Prior to the Closing DateDate 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.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On or prior to the Closing Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider LetterForward Purchase Agreement, the Registration and Shareholder Rights Agreement Insider Letter and the Administrative Services Registration Rights Agreement.
(lk) At least one Business Day prior to the Closing DateDate 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.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Sources: Underwriting Agreement (Thimble Point Acquisition Corp.)